Debt/Law

Debt delinquency and BankRate.com’s misconceptions

Posted on by Kenneth Ballard / 0 Comment

At times when I see an article online regarding delinquent debts and debt collections, I often wonder how many of these "experts" have actually been through delinquencies and collections, or even the "Full Monty" – i.e. court.

Recently BankRate.com published a presentation written by Janna Herron called "Debt Delinquency Timeline: What to expect". Some of what is in the presentation leaves me wondering what these "experts" actually know. And by now you’re probably wondering what gives me the gall to question BankRate.com. Well, I’ve been through not only collections, but I’ve been to court. Thankfully I’ve not had any of my debts turn into judgments or garnishments, but I’ve studied extensively what could have happened to me simply to be informed, not only informed of what might happen, but informed of my rights.

Further their definitions of "past due" don’t match what you would expect or what most creditors use. For example they define 30 days past due as: "You just missed your payment due date and are 30 days behind the start of the billing cycle." This isn’t 30 days past due, this is just a missed payment. The proper definition of 30 days past due means 30 days past the due date with no payment.

In this article, when I say "x days past due", I mean x days past the initial due date with no payment being made. The billing cycle has no bearing on how "past due" your account is. The due date is what is important.

Let’s go through this timeline one piece at a time.

Introduction: Delinquent debt won’t simply go away

Some may be tempted to try to outrun the debt by dodging collection calls and throwing away creditor letters. But sooner or later, your debt will find you.

This should be plainly obvious to anyone. Many debt collection agencies and collections departments are staffed with people with access to the kind of information that can be used to track you down. Many debt collection agencies are part of a law firm as well: people who will see debt collection through from start (initial communication) to finish (lawsuit) if necessary, and these are people who do it for a living.

Keep that in mind if you’re thinking of abandoning a delinquent debt, be it a credit card or mortgage.

Stage 1: 30 days past due

Again their definition of 30 days past due is only a few days past the due date:

You just missed your payment due date and are 30 days behind the start of the billing cycle.

According to Bankrate’s presentation, you can expect this:

Lenders likely won’t sound any alarms, but instead will use so-called soft tactics to get your payment in. They will call, email and send letters, but all contact will be friendly and helpful, says Bruce McClary, media director of ClearPoint Credit Counseling Solutions. McClary has also worked as a debt collector. The creditor may also contact the credit reporting bureaus to report your account as delinquent.

This is reasonably accurate within the proper definition of "30 days past due". What BankRate tries to imply is that you will get phone calls if you’re only a few days past due. With some creditors, you might, but I highly doubt it is common practice – I’ve worked with numerous creditors, companies and services and never have I been called when only past due a couple days. Instead they will typically wait at least 14 days, if not a full 30 days (that’s calendar days, not business days) past the due date before contacting you if you have not made a payment by then.

So if you fall 30 days past due, expect at least a phone call from the creditor in question. If you have just forgotten about the payment and can afford to make it, then make the payment as soon as possible – online options will get them paid quicker. Or they may ask for authorization to make the payment for you – this option is entirely your choice, but it may require you providing account information over the phone. If you make the payment online while they are on the phone, provide them with the confirmation number so they know you did make the payment. If you make the payment but they still call you back, answer the call and inform them a payment has been made or mailed.

If you are unable to make the payment, this is your opportunity to discuss options. Don’t ignore the phone calls. It may seem unpleasant talking with them when you are unable to pay your bill, but the sooner you talk to them, preferably before it becomes a problem, the better it will be for you in the long run.

One thing to bear in mind: many financial companies have automated systems that check account statuses on a daily basis. If end of business approaches on day 30 after your due date and you have not made a payment, your phone number will be moved into an automated queue for the customer support department, who will then call you. If they are unable to reach you, your phone number will be rotated back into the queue. Depending on the creditor, you may receive another phone call later that day, the next day, or not for a few days, but they will continue phone call attempts, escalating in frequency, until they get ahold of you or they have to turn the account over for collections, whichever comes first.

Any time you make a payment that is late, you subject your account to late fees. If you are late on a credit card account, any introductory rate goes away and your existing rate is escalated to a penalty rate. Your account will also be reported as delinquent to the credit bureaus.

Stage 2: 60 days past due

Their definition of "60 days past due" is actually 30 days past due (emphasis added):

It’s been a month since your due date and two months since the billing cycle started.

According to BankRate’s presentation, you can expect this:

Your credit card account likely will go into collections status and will be turned over to a department that specializes in obtaining delinquent debt, says McClary. The friendly phone calls, letters or emails will turn a bit more aggressive and less positive. The creditor will warn you that your account could go into serious delinquency if you don’t resolve the situation. Also, the creditor may contact the reporting bureaus to report your account as delinquent if it hasn’t done so already.

Every 30 days your account is delinquent, a report is sent to the credit reporting agencies. Much of that is likely automated.

But much of what Mr McClary says is more to be expected at 90 delinquency, not 60 days, and certainly not 30 days delinquency. No creditor of which I’ve read will turn your account over to an internal collections department at just 30 days past due. Instead the delinquency is likely to be handled by customer service representatives, as mentioned earlier, but it won’t be turned over to an internal collections department until the account becomes much more delinquent.

At 60 days delinquent, you can expect the phone calls to become more frequent (several per day) and a little less friendly and more pressing, but they’re still willing to work with you.

However the creditor may "turn off" the account, meaning start denying any transaction requests against it. If this is a utility, you will start getting threats of the service being shut off.

If you have not yet been talking to the creditor by this point, you need to start doing so. Again, the sooner you start working with your creditor, the better. The longer you wait, the less willing they become in working with you, and if you haven’t talked to them by this point, expect to provide a lot of explanations, and expect them to be less willing to discuss a variety of options as their main concern at this point is getting your account current within your contract.

Stage 3: 90 days past due

If you go three months without making a payment, things are now dire. Many creditors will turn your account over to an internal collections department, while others will still keep the account with a customer service department until the account is to be charged off. If this is a utility, service has been shut off by now or will be shut off within a couple days of reaching this point. In the case of credit accounts, the account has likely been disabled and credit requests against it are being consistently rejected. Your options are now limited.

According to BankRate, this is what you can expect:

More aggressive phone calls, emails and letters from your creditor. There’s a good chance your creditor will shut down the credit card account and you won’t realize it until you are denied in a store. That should prompt you to call the company and work out a solution. The creditor is most likely reporting the delinquency to the credit bureaus. At the same time, late fees and interest fees add to the total amount you owe.

If the phone calls haven’t escalated to multiple times per day at 60 days delinquent, they certainly have by the time you reach 90 days delinquent. And by this point with many creditors, if you cannot bring the account up to date in a short amount of time (read: less then 30 days), they’re going to be much less willing to work with you. With many creditors, 90 days delinquent is your last chance to keep the account from turning over to internal collections. In the case of most secured loans, such as for a car or boat, this is also your last chance to avoid repossession, so negotiation is absolutely necessary to save your property.

Once the account is turned over to internal collections and any security for the loan repossessed, you’ve lost out on virtually any options of recovering the account. Now your option is to set up a payment plan on the existing balance, against which they may still assess interest and late fees.

The account is now a black mark on your credit report: not only is it reported as 90 days past due, but it is also reported as being in collections if it has been turned over to a collections department. If there has been a repossession involved, that has also been reported and is now on your credit report.

Stage 4: Charge-off status

A creditor may not charge-off an account until it has been delinquent for 180 days for open-ended (revolving) credit accounts. For closed-end accounts, meaning a loan with a fixed term such as a personal loan, the charge-off minimum is 120 days past due. That is the minimum standard established by the Federal Deposit Insurance Corporation under what is called the "Uniform Retail Credit Classification and Account Management Policy".

When an account is "charged off", the creditor is deeming the account as not collectible. If the account has not yet been handled by an internal collections department, it will be turned over to one, if one exists. Otherwise it will be placed (assigned) with a third-party collection agency, and you will start receiving phone calls and written notices from them.

Once the account is turned over to a third party collection agency, your options become a little bit more open, and sometimes for a delinquent account, it may be in your best interest to have the account placed with a collection agency. While the account is handled by the original creditor, they are subject to only certain provisions of the Fair Debt Collection Practices Act (15 USC 1692). Third-party collectors, however, are subject to the entirety of that law, including an additional option that can delay collections activity on the account called "debt validation".

Note, however, that I said this will delay collections, not stop it. Well in some cases it might stop collection activity because a debt collector must stop all collections activity on the account until they can satisfy the validation request, which, at a minimum, requires they verify the debt account and amount with the original creditor. If they can’t do that when it is requested, then they cannot collect on the account. But you have only a limited amount of time to take advantage of debt validation, so be sure to not squander this opportunity.

Contrary to popular belief, debt collectors are actually relatively open for negotiation. Their only concern is collecting the debt, somehow, as that is the only way they get paid. But you’ve got to be able to give them something. Don’t ignore their letters and phone calls – if you’re unable to negotiate for payment at that time, say so. Some debt collectors may even send an offer with their first notice by mail. And if that offer is affordable, then take advantage of it, but only after going through validation. Then after they validate the debt, ask if they’d be willing to renew the offer, or make an identical offer to them with a payment included that is in line with your offer.

But don’t ignore the debt collector. Many debt collection agencies have lawyers associated with them, meaning if you ignore the debt collector, you will very likely be sued. If the debt collection agency is in a different state from where you live, they will place the account with an attorney in your area.

Stage 5: Court

If a debt collector has decided to sue you, you may receive notice of this in the mail ahead of the actual visit by the court representative. Now being sued does not mean you’re out of options. You can still negotiate and settle the debt out of court ahead of the court date provided on the summons. You can also do this at any point before a judgment is rendered.

But don’t ignore the summons. Definitely do not ignore this. Even if you settle the debt out of court, appear in Court on the date provided on the summons unless you receive a notice from the Court stating otherwise. You would think this is common sense, but you may or may not be surprised by how often people ignore it, probably because they are told by the debt collector that they can ignore it.

Now one thing the BankRate presentation mentions is a little inaccurate:

If the debt collector or creditor receives a judgment, then it may garnish your wages or seize assets such as bank accounts to satisfy the debt.

None of this can occur without a properly obtained order from the Court. This means once they receive the judgment, they have to file additional motions to receive permission from the Court for each thing they want to do: a motion to garnish wages, a motion to seize specific assets, and so on. I doubt they can seize the entirety of a bank account, though. Further State laws limit how much of your wages can be garnished – i.e. they cannot garnish so much of your wages that you are unable to live on what is left. As for seizure of assets, this also depends on the laws of the State in which you reside. One commenter on the Yahoo! mirror of this presentation implied that the creditor will seize everything you own to satisfy the debt:

I don’t know what credit card companies he’s been dealing with, but the ones that I have dealt with are NOT helpful in the slightest; this is because they don’t WANT you to pay your bills. They want you to stop paying, ignore the letters, be sued, don’t go to court, and here’s where the credit card companies start to get REALLY happy–if you don’t respond to the court notice, they will file a judgment against you, and be able to take all of your stuff–not just property, but your tv, furniture, etc.!

It makes me wonder what credit card companies he’s dealt with, and how willing he was to talking with them before his delinquency turned into a court summons. Further, I’d like to know what this person, who went by the name "C. Patrick" on Yahoo!, has to back up his statement, because the law doesn’t quite support what he’s saying.

A judgment is nothing more than the Court ordering you to pay the amount in question to the other party. You can negotiate payments with them on the judgment just like you could on the debt before it even got this far. However if you don’t pay the judgment, or negotiate a payment plan on it and stick with it, various legal remedies exist that can be used to secure payment on that judgment, but all options require they go through the Court, especially if they are going to garnish wages or attempt seizure of specific assets.

Yet many seem to believe that your creditor will just show up at your doorstep with a giant truck ready to cart everything you own off to the auction block, flashing the judgment in your face as tacit authorization. That would be grand larceny. Needless to say there is much misinformation floating around as to what creditors and credit card companies can do to recuperate what they are owed when there is a court judgment involved.

Conclusion

There is still plenty of misinformation floating around about what will occur if you fall behind on an account. What actually happens is going to vary from creditor to creditor, but what is reported in the BankRate.com presentation, however, is atypical of what someone is likely to encounter. What a creditor may do is also limited by the law. Yes, some don’t entirely follow the law, and that becomes the focus of "investigative reports" on your 10 or 11 o’clock news as well as the "television news magazines" on the various news channels.

The best defense you have against your creditors is to educate yourself on the laws in your State and the applicable Federal laws, as you are the best person to hold them accountable. Document everything when working with your creditors as well. Further, work with your creditors before you fall behind and you will find them willing to talk with you and negotiate something. The longer you wait, the more likely they it’ll be that they won’t accept anything less than paying in full, or paying in full with only a few payments.

Otherwise, do your best to keep your accounts current and you won’t have anything about which to worry.

See also

Casey Anthony/Double jeopardy

Double jeopardy – momentarily revisiting Casey Anthony

Posted on by Kenneth Ballard / 5 Comments

Looking over some of the search engine terms coming into my blog with regard to my article on the Casey Anthony verdict, I’m sobered and concerned at the same time:

  • can casey anthony now be compelled to answer questions
  • can a not guilty verdict be overturned
  • casey anthony evidence of innocence
  • can casey anthony not guilty verdict be overturned
  • why was casey in jail if presumed innocent

Now some of these search terms could have been from outside the United States, but if any of these searches came from inside the US, I definitely have reason to be concerned. Actually given many statistics published about how much our citizenry knows about the government, I have reason to be concerned anyway. Too many people have no clue as to how our criminal justice system works. Too many people have no clue what rights they have when confronted with a criminal complaint.

First, let’s address a couple of the questions implicit in the search terms:

Can Casey Anthony be compelled to answer questions now that she has been acquitted? Only under certain circumstances, typically requiring a court order. There are other crimes with which she could be charged related to the death of her daughter, so she still retains her Fifth Amendment rights and cannot be compelled to answer questions.

Can a “not guilty” verdict be overturned? Not in the United States.

Why was Casey in jail if she is to be presumed innocent? To put it simply: she was charged with a felony. The question really should be why she was in jail for so long without any actual trial. But beyond this, the government has the authority and power to hold you in jail to ensure you answer the charges that have been filed against you. If there is reason to believe you will flee the jurisdiction before you can answer the charges, they will hold you in jail.

What evidence exists showing that Casey Anthony is innocent? First, she was never found “innocent” by the jury, but was instead deemed “not guilty”, which means that the prosecution did not prove beyond reasonable doubt that Casey Anthony is guilty. In our criminal justice system, Casey Anthony is to be presumed innocent until properly obtained evidence is presented to a jury and that jury determines otherwise. In this case, the jury could not determine otherwise. Casey Anthony need not provide evidence that she is innocent, only plug enough holes in the evidence the prosecution presents.

What about the Federal government prosecuting Casey Anthony? I’ve addressed that notion here and here. Please read and be educated.

Now let’s talk about double jeopardy.

* * * * *

If the only thing that pops to mind when hearing the words “double jeopardy” is Alex Trebek and giving answers in the form of questions, then please read on and be educated. Now if the movie starring Ashley Judd and Tommy Lee Jones comes to mind, that’s a little better – though the premise in the film is a little flawed.

The legal concept of “double jeopardy” with regard to the criminal justice system in the United States can be found in the Fifth Amendment:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb

If all goes well in the trial, and the prosecution presents and rests, the defense presents and rests, and the case is handed over to the jury and the jury returns a verdict of “Not guilty”, the case ends there. In the case of Casey Anthony, she can never again be charged with killing her daughter. Well charges cannot be filed that allege Casey Anthony killed Caylee, but Casey Anthony can still be charged with conspiring to kill her, if there is evidence a conspiracy was involved.

This sounds like double jeopardy, but conspiracy and murder are considered two different offenses due to what is called the Blockburger test:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.1Blockburger v. United States, 284 US 299 (1932), at 304

The individual crimes of “conspiracy to commit murder” and “murder” both have facts that overlap. But they have facts that are distinct, satisfying the Blockburger test. The Fifth Circuit Court of Appeals has ruled such in a case involving a person charged with both conspiring to commit a crime and actually committing the crime, with the conspiracy prosecution occurring second.2United States v. Kalish, 734 F.2d 194 (5th Cir. Tex. 1984) I know it sounds like double jeopardy because implicitly it is two prosecutions for the same offense, but in the matter of law it is not.

As mentioned above, under the Fifth Amendment no acquittal from a jury can be nullified or overturned. In the United States much trust is placed on the jury and the jury is always presumed to be impartial and incorrupt. Now this may not always be the case, but because that is the case in the vast majority of cases, it is generally presumed. Appellate courts and governors are very reluctant to override a jury verdict. If that were to happen too frequently, the entire jury system would be compromised, and the jury is fundamental to our criminal justice system. Some would even call it “sacred”.

Where a trial is not subject to the “double jeopardy” rules includes cases of a mistrial or hung jury – basically cases where a jury is unable to render a verdict or is not given the chance to do so. If a conviction is vacated and a new trial ordered, double jeopardy does not apply. Cases where charges are dismissed without prejudice are also not subject to double jeopardy. If an trial has become so tainted that a judge dismisses charges with prejudice, double jeopardy attaches.

There may also be times where an appeal renders a prosecution’s case so damaged that the original trial judge has virtually no choice but to dismiss the charges, typically without prejudice just of the off-chance that something else might come around to warrant a new trial. Rarely is the dismissal with prejudice. Doing so would mean that something has utterly prejudiced the prosecution to the point where it is impossible for the accused to receive a fair trial.

So let me summarize with an extreme example of how double jeopardy works: Casey Anthony could confess on national television that she actually killed her daughter, even providing all the nasty details that could not be uncovered with forensic evidence, and she is completely immune from prosecution unless evidence emerges that she conspired with another to kill her daughter.

References[+]

Health/Life/Marriage/Sex

Divorcing over weight gain

Posted on by Kenneth Ballard / 3 Comments

Let’s take a break from talking about politics, religion, the Casey Anthony trial, and everything else to focus on a question about relationships.

Let me ask you a question: what would cause you to leave your significant other or spouse? Now if you quickly rise up and shout "Nothing!", then you really need to really think about things. So let me ask a question that is a little more pointed: if your significant other started doing things that you know either is or would have serious adverse effects upon their health, would you leave them if they refused to change? This could include significant and seemingly uncontrolled weight gain, drug use or out-of-control drinking.

This question comes from a user contribution to Yahoo! Shine: "Is her weight gain good reason for his goodbye?"

Basically the question comes down to this: if your significant other refuses to change away from their knowingly self-destructive behavior, would you leave them? "Letting yourself go", typically meaning putting on a significant amount of weight, is self-destructive behavior. Now the definition of "significant" is certainly up to you.

One thing that rather boggles my mind is how many people are ready to demonize the guy mentioned in the above linked article, who is referred to as "Bob", who left his wife "Jane" after she put on a significant amount of weight. Now he allegedly referred to her in less-than-kind terms. One person, named "annie", did withhold judgment because of the lack of details:

I couldn’t possibly judge Bob until I knew how Jane ‘let herself go". I knew a similar couple. Married twelve, together 20. With the successive and ever increasing weight gain came a cyclical depression from Jane. (we’ll call them Tarzan and Jane). She would no longer allow Tarzan (a visual guy: what Dude isn’t?) to view her body: she changed in the bathroom. Sex was once monthly and a chore. No doubt very embarrassing for Jane but Tarzan was probably dying for the intimacy. She would NOT touch Tarzan or hold him not even his HANDS for fear it would be miscontrued [sic] as an "invitation" for sex. She got to where her clothing would not cover her properly. She couldn’t fly, wouldn’t go to the movies, or go to the beach and be partially naked. He is a boater and a scuba diver and she used to be his first mate. She is divorced now, on disability for her manic depression and her arthritic knees. Agoraphobic. Angry. Bitter. And ONE HUNDRED pounds more.

Now if your wedding included the typical vows, then you likely said that you’d stand by them "in sickness and in health". And as we can see by the current divorce rates, less people are doing that today than in times past. But let’s set aside just for a moment the fact that they were married and focus purely on the circumstances.

Allegedly in the circumstance we have presented in the article, we have a woman who, after getting married, "let herself go" and "got fat". Now the question not answered in the article is this: how much weight did she put on? How many sizes did she go up? There is the mention of a child as well, and it is not unusual for a woman to put on weight during a pregnancy. But by "letting herself go", I’m going to interpret that to mean that she kept putting on weight, basically showing that she had lost a significant part of her self control. In other words, she had fallen into a very unhealthy lifestyle.

He gave her an ultimatum: lose the weight or face divorce.

Again there are too many details missing from this circumstance, so it’s difficult to tell if Bob is in the right. If the circumstance is like the one "annie" describe above, then I am inclined to agree with Bob, that he was in the right for leaving her, but only if Bob was otherwise maintaining his self control and didn’t let himself go. As nothing is said about Bob’s weight in the article, we must presume that this is the case.

That being said, let me summarize just to be clear. We have a woman who "let herself go" and, it is implied, put on a significant amount of weight. This, as we all know, shortens your life span and leads to a whole host of other health concerns. He was likely keeping his weight and health in check. There were likely numerous confrontations over this as well; I highly doubt he just woke up one morning, noticed she was now 50 or more pounds heavier, and said "lose the weight or lose me". Weight gain is rarely sudden; almost always is it gradual, and rarely does it escape notice.

As such Bob was in the right to demand that she reverse course, to demand that she regain her self control and start losing weight, even seeing the need to go so far as to provide an ultimatum: threatening divorce. She allegedly refused to change and reverse course, so he left her.

And I feel Bob was in the right to do so.

This question lingers in the back of my mind: what if it was Bob who let himself go and Jane who threatened, then pursued divorce because he refused to reverse course? Would those commenting equally demonize Jane for doing so? Somehow I doubt that.

Relationships, including marriages, are about give and take. Marriage does not mean that you agree to put up with whatever the other throws at you. We all have only so much patience. And if your significant other starts him or herself down an unhealthy and self-destructive path, you have right to demand they change or reverse course, and threaten to leave and actually leave the relationship if they refuse to do so. Doing so does not mean you are not committed to the relationship, nor does it mean you don’t love them. It means you recognize they are no longer committed to holding up their end of the bargain.

Now the one thing we need to also realize is that everyone’s weight fluctuates. Insignificant weight gain, such as 10 or maybe even 20 lbs, should not raise alarm, especially if the person’s lifestyle is otherwise healthy. However if they are clearly on a self-destructive path of significant weight gain with no sign of any control over it, or any desire to bring it under control, then that is certainly cause for concern and, I believe, even cause for divorce.

Let the flame war begin!

Casey Anthony/Double jeopardy/Due process

Revisiting the presumption of innocence

Posted on by Kenneth Ballard / 0 Comment

Casey Anthony was charged with the 2008 death of her daughter, Caylee. According to the jury, the prosecution’s case did not compel a verdict of guilty, choosing instead to acquit Anthony of the charge of first-degree murder. Now Anthony is not walking away from this case completely free, as she was convicted of several counts of lying to investigators, which are felony counts that will mean she spends several years in jail.

The one question that is still left in the balance: did she actually kill her daughter? Many will say yes, given the publicity around the case. Others will say "no", that the jury’s verdict means she is innocent. The jury’s verdict, however, compels all of us to say simply "we cannot know".

Too many people have too glorified a view of criminal court cases. Unfortunately television has had much to play in this, and there is a phenomenon called the "CSI effect" that has concerned a lot of prosecutors. For those who don’t know, the CSI effect basically means that jurors would expect the level of evidence and degree of thoroughness to be roughly equivalent to what is seen on shows like CSI: Crime Scene Investigation. Anything less would mean an acquittal. Obviously this is a burden of proof that can never be met, even with the greatest technology, but try telling that to jury members who have been watching CSI for the last decade.

But let’s get back to the criminal case.

In the eyes of many people with regard to a criminal case, the accused is either guilty or innocent, and if a jury returns a verdict of "Not Guilty", the accused is innocent, while a verdict of "Guilty" means the accused is actually guilty. This is not the case. Convictions are overturned, while better evidence after an acquittal can end up showing conclusively that the accused was actually guilty. Sometimes evidence is improperly gathered, and if the evidence is rather damaging but suppressed due to Fourth Amendment concerns, that alone could spell acquittal, whereas if proper guidelines and procedures were followed, it would’ve meant a conviction.

And during an interrogation with a police officer, a person can say the wrong thing and find themselves under arrest, in court, and then in jail following a conviction.

It is certainly not just black and white.

But the question of whether Casey Anthony is guilty is not ours to decide. She is entitled to be presumed innocent. Her acquittal compels it. Even if she was convicted, we must still presume her to be innocent due to the chance, however slight, that her conviction could have been overturned. Whether she is actually guilty is never a question for us to decide.

It is not for the court of popular opinion.

Yet too many think it is.

My wife and I were dining at a Perkin’s restaurant a week or so ago, and on a television nearby were news reports on the trial. One of the waitresses, actually our waitress, said prominently and clearly that Casey Anthony deserved the death penalty. The thought in the back of my mind was simply this: why do you not presume her to be innocent? How can you know she is guilty?

Simply speaking: you cannot. You do not know and you cannot know if she is guilty. This alone is what compels us to presume that any person accused of a crime is innocent.

Life

Relearn and remember — a rant on Independence Day

Posted on by Kenneth Ballard / 0 Comment

IN CONGRESS, July 4, 1776,
The unanimous Declaration of the  thirteen united States of America

These words and the signatures at the opposite end of the parchment containing them placed the colonies at a point of no return. It was treason, plain and simple, and every July 4, when we celebrate (and simultaneously forget) the signatures upon that parchment, we are toasting treason (from National Treasure):

A toast? Yeah. To high treason. That’s what these men were committing when they signed the Declaration…

So… Here’s to the men who did what was considered wrong, in order to do what they knew was right…

The question of the actions of the Second Continental Congress is not whether they were right, but whether they were necessary. Treason is never something that is "right" or "okay", even if their purpose is to overthrow a government perceived by its subjects as tyrannical. In describing the conspiracy and treason of the Second Continental Congress, one must instead use the term necessary, as that keeps those actions contained. It is all too easy to describe actions as being either right or wrong, but justifying the necessity of certain actions is much more involved, which Jefferson knew when he wrote the Declaration (emphasis added):

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

Yet in studies of the Declaration of Independence, the focus seems primarily on these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

along with this, the closing sentence of the Declaration:

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Ask casually on the street various questions about the Declaration of Independence, and unless you’re speaking to someone who just had a careful study of the document, you are bound to receive many wrong answers or blank stares. I charge you, dear Reader, with a refresher course on the Declaration of Independence. Read through it and see what they were doing. Many people hold the words of that document as "sacred words" or "divinely inspired", but they are no such thing.

One should ask themselves why, only in 1775, did the colonies decide that independence from the Crown was necessary? And yes, I did mean to write 1775, because the American Revolution (or a British Civil War, depending on what side you’re on) started long before the Declaration was written. Study the First and Second Continental Congress for a course on what led to war. You will see that initially the colonies tried to do everything to avoid war, not aggravate it.

Indeed from the first colony in 1604, the second colony in 1620, the colonies and Great Britain existed in relative harmony. There were little qualms between them. Thoughts of severing ties with Britain didn’t enter the thoughts of the most if not all colonists.

The year 1761 brought the coronation of George III, who inherited from the previous King the Seven Years’ War, which included the French and Indian War fought in North America. Initially celebrated by the colonies, along with the rest of Great Britain, George III would start off his reign with a series of unwise decisions. Starting in 1763, following the end of the Seven Years’ War, with Lord George Grenville as Prime Minister, several laws would be enacted that would spark animosity in the colonists, arguably the most inciting of which was the Stamp Act of 1765, which bore the long title of:

An act for granting and applying certain stamp duties, and other duties, in the British colonies and plantations in America, towards further defraying the expences of defending, protecting, and securing the same; and for amending such parts of the several acts of parliament relating to the trade and revenues of the said colonies and plantations, as direct the manner of determining and recovering the penalties and forfeitures therein mentioned.

In other words, it was a law that applied only to the colonies. The law was reasonably justified: the French and Indian Wars had been costly to the British treasury, the colonies had been relatively immune from general taxation, and Parliament felt that the colonies should reimburse the treasury certain costs of their protection.

The issue, however, is that the law was enacted without any colonial representation to assent or object, and it wasn’t the only one, nor the first one. The colonies never sent representation to Parliament. It was also seen as a violation of the Bill of Rights of 1689, which provides for a freedom of the press. So the imposition of these taxes that applied only to the colonies led to the popular political sound byte "No taxation without representation". Laws of this nature, tax laws that applied to only one part of the population instead of the population as a whole became the basis for this provision of the Constitution that was overridden in part by the Sixteenth Amendment (Article I, Section 8 [emphasis added]):

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

Resistances to these various laws eventually led to the imposition of what would be called the Intolerable Acts of 1774, the preceding event to those acts being the Boston Tea Party of 1773. The Intolerable Acts led to the formation of the First Continental Congress. The British response of force led to the Second Continental Congress, which formed the Continental Army.

There were various ends the colonists were seeking, and those ends could not be found with the government under George III. In an odd political move Jefferson declared in the document that there exist certain rights that no government can touch, an idea that would spark further revolution in Europe and other parts of the world following the success of the American Revolution.

So the question comes down to this: what was the purpose of the Declaration of Independence? To declare independence? Not quite.

Declaring independence was actually the purpose of the Lee Resolution, adopted on July 2, 1776. The initial consideration of that resolution led to the formation of the Committee of Five, charged with drafting the document that became known as the Declaration of Independence. The purpose of that document was to not only declare independence, including into it the wording of the Lee Resolution, but to do something a little more important: justify and explain why independence is being declared.

There are so many overstatements of the Declaration of Independence and the actions of the colonists, that they were doing God’s will or that they were divinely inspired or ordained by God. Not so.

The actions of the Second Continental Congress represent a cup of water superheated in the microwave before a sugar cube was dropped into it. The various actions of the Parliament brought the colonies past the breaking point before all hell broke loose when the British government responded to petitions for redresses with military force. This forced the hands of the colonists. It turned from petitioning the government to fighting them off. As the King made his intentions clear by declaring the colonies to be engaged in rebellion and levying war against them, they had little choice but to declare independence, continue to fight off the British and pray they succeeded. Thomas Paine observed such in his book Common Sense, in which he makes a case for independence.

The Declaration of Independence is treated as some magic, sacred document when history shows it to be little more than the Second Continental Congress being backed into a corner.

So what are we remembering or celebrating this day? If you don’t relearn and remember the history leading up to the historical day of July 4, 1776, when the final text of the Declaration of Independence was formally adopted by the Second Continental Congress, after the colonies had been at war for over a year, I guess you’re doing nothing more than grilling meat and blowing shit up. If that be the case, the memories of those who secured that independence with the willing sacrifice of their lives has been forgotten, their efforts little more than in vain.

Oddly and ironically the words of a British comedian are the perfect summary for what we should remember this day:

We didn’t earn this freedom. It was handed to us on a plate by people who did earn it with their lives. We don’t own it. We’re custodians of it.

— Pat Condell, "Appeasing Islam" (March 8, 2008)

That is what we should all be remembering not only this day, but every day of our lives.

Free speech/Religion

Rebranding prayer

Posted on by Kenneth Ballard / 0 Comment

I am a huge advocate of free speech. However I also hold the belief, like many others, that free speech does not mean you have an unrestricted license to say what you want. But one thing that is clear is that Courts tend to hammer hard on those who seek to restrict the free speech rights of others – most notably and recently, the Supreme Court of the United States ruling in favor of the Westboro Baptist Church.1Snyder v. Phelps, No. 09-751, 562 U. S. ___ (2011)

Now as a result of various observations of how hostile the Courts, and most notably the Supreme Court, have been with regard to attacks on free speech, it comes with little surprise that those on the religious right are attempting to assert free speech rights, but not technically with regard to speech.

Those on the religious right are trying to escape the Establishment Clause by rebranding prayer under the Free Speech Clause. The First Amendment states simply:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Recall that the First Amendment is applied to the States by way of the Fourteenth Amendment. This is called the incorporation doctrine.2Incorporation of the Bill of Rights. (2011, May 25). In Wikipedia, The Free Encyclopedia.

The typical scenario with regard to public schools involves a student who, over a PA system at a public school, recites a prayer, either with the support of the school administration or completely against any restrictions the school attempts to make, if any restrictions are made at all. In the eyes of religious conservatives, the former is the school “abiding” by the Constitution (despite decades of jurisprudence to the contrary) or going with the will of the people, and the latter is a “brave” student attempting to assert their rights against the tyranny of the school and atheists trying to take away their religious rights.

Ugh…

I will say this up front: prayer is a form of speech because it is a form of expression. Free speech means not just the ability to speak with words, but the ability to express yourself through any medium you select, be it art, music, or a comedy show, and in any language you select, be it English, Spanish, Esperanto, Elfish, Klingon or Pig Latin. Religious expression is expression, therefore it can also be reasonably called speech. But… (insert long, dramatic pause) as the First Amendment separates religious expression and free speech in its text, the two are to be treated separately in matters of law.

Getting to the Constitution, what does this scenario fall under? Is it the free speech doctrine, the Establishment Clause, or the Free Exercise Clause?

Free Exercise Clause

The conservative blog The Right Scoop attempted to make this argument with regard to Laci Rae Mattice, calling her a “brave senior” (emphasis theirs):3“Brave senior led prayer at school graduation despite ACLU“. Posted May 23, 2011, at the blog “The Right Scoop”.

The Constitution clearly restricts the making of laws in order to establish religion or to prohibit the free exercise of religion. A prayer said by a senior, listed on a graduation event program is nothing short of the free exercise of religion and has nothing to do with the creation of any law. End of story.

As I explained in my previous article, the First Amendment restricts Congress from doing more than just attempting to establish a religion. It restricts Congress from affecting the establishments of religion, meaning the foundations and principles of religion itself. The Free Exercise Clause means that the free exercise of religion cannot be restricted by Congress. The incorporation doctrine applies the same restrictions on the States.

Unfortunately the Right Scoop is 100% wrong for several reasons.

Government-owned schools

One thing that seems to escape a lot of people is the simple fact that public schools are government-owned. Speaking about a meeting she attended – if you can call it that – 15 year-old atheist public high school student Jessica Ahlquist had this to say about one of the speakers:4“A Quick History“, posted May 21, 2011, by Jessica Ahlquist on her blog.

Next, a priest named Roman Manchester stood up to speak and looked down at me with a smirk while he spewed some incoherent nonsense about government owned schools in Russia and how “honey, we don’t want that.”

Public schools are established by an official act of the government. All public schools, including public colleges and universities, are government-established, meaning they are also government-owned. Plain and simple. Being government owned and government operated, public schools are just as enjoined as the legislature when it comes to matters of religion, and are further enjoined to only specific things by the legislature that created it.

This same injunction restricts schools from respecting the establishments of not only Christianity, but also Judaism, Islam, Wicca, Paganism, Druidism, Pastafarianism, and any other religion out there. A pastafarian can no more provide an invocation thanking the Flying Spaghetti Monster than can a Jew or Christian provide an invocation thanking God.

Public schools are also enjoined by other items in the Constitution that trickle down to the States as recognized liberties protected by the Fourteenth Amendment. Many atheists have said that this includes the provision of Article VI of the Constitution that forbids religious tests for public office:

but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The Supreme Court of the United States in Torcaso v. Watkins, 367 US 488 (1961), instead applied the Free Exercise Clause:

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.”5Torcaso v. Watkins, 367 US 488 at 495

This means that, under the Free Exercise Clause, public schools cannot require teachers, administrators and students to profess or deny any particular religious belief. “Free exercise” means that a person cannot be compelled at any time to profess a particular belief, regardless of whether the person in question holds that belief or not. The person is instead free to profess it at any time of their choosing without compulsion, within other limitations that are beyond the scope of this article. This limitation also means that the schools cannot compel students to exercise any particular religious belief against their will, such as with the recitation of an official school prayer plus a few Bible verses, so said the Supreme Court in the case Abington School District v. Schempp, 374 US 203 (1963), reaffirming the above quoted statement from Torcaso.

Let me also make this clear: private schools, such as schools established by the Catholic Church, are not enjoined by the First Amendment in the way public schools are enjoined. There is a clear distinction between public and private schools that must be kept in mind. Public schools are enjoined by the Constitution in more ways than private schools by way of their government establishment from which they cannot be divorced.

A public school is as much a government agency as the local police department. Period.

Government-provided platform

As the schools are government owned, any platform for speech provided by the school is a government-provided platform. Any person who speaks on that platform is selected by the school, and so the school can exercise some control over what that person can and cannot say.

And the school is enjoined by applicable laws, including the Constitution, in what they may allow a person to say.

Many don’t realize this, as well, but schools already do censor speech when it comes to speeches given at official school functions. With many functions, appointed speakers must compose and submit in advance the speech they will give to have it reviewed and approved by the school. For example, a student who holds white supremacy views will likely not be able to state those views on the government-provided platform, and if said student were to attempt to do so, that student would would likely be removed and reprimanded.

Now the speaker may deviate from their speech, and a creative or entertaining speaker may actually do so, but they’re not given a very wide berth.

And opening your speech by joining everyone in one mass recitation of the Lord’s prayer, such as with the recent antics of Laci Rae Mattice, requires such a wide berth, and it is a wide berth that a public school cannot give, so says the Supreme Court in the case Santa Fe Independent School District v. Doe, 530 US 290 (2000):

The delivery of a message such as the invocation here-on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as “private” speech.

A speaker at an official school function or school-sponsored event, be it a graduation or football game, that speaks over the school’s public address system, is doing so at the school’s discretion. As the school is enjoined by the Constitution, so is the student when speaking at a school function.

Free Speech

As student speakers at public school functions inherit the same injunctions that apply to the school, the student speaker cannot make any kind of religious expression upon the school-provided, school-sanctioned platform without the school’s permission. As the school cannot provide such permission, because it is enjoined by the Constitution from doing so, the student inherits the injunction of the First Amendment.

Let us now turn to the Free Speech doctrine of the First Amendment.

Free Speech

The Jeremiah Project is a Christian web site run by Vic Bilson with a clear Christian objective and purpose:

This Jeremiah Project web site is my response to the situation in America today, a “famine in our land of hearing the words of the Lord” – Amos 8:11

In these pages we will look at the world today from a distinctively Christian worldview. I won’t “tickle your ears” but rather proclaim the sometimes hard truth that America so desperately needs to hear.

Looking through much of the web site, Vic uses his private platform of speech to spread some conspiratorial arguments that include the New World Order and the Illuminati. Interspersed within are hundreds of Bible quotes as well. On his web site, he also provides “examples of the courts and local authorities stifling free speech”, all of which are examples of how the proliferation of religious expression by State and local governments have been restricted by the Courts under the incorporation doctrine.

Now this person obviously is not representative of the entirety of Christianity. To say so would be embellishing things to an extreme degree. However it would also be an embellishment to say he is alone in trying to apply the free speech provision of the First Amendment to prayer. Last year, the Greenwood, Indiana, school district attempted to do the same:6Associated Press. (2010, April 23). “Greenwood schools call graduation prayer free speech“.

A central Indiana school district argues that prohibiting a planned graduation ceremony prayer because of a federal lawsuit filed by the top-ranked senior would violate students’ free speech rights.

And I’m confident there are others who have attempted to assert the same. In fact I’ll be providing a very recent argument in just a little bit.

Basically the argument is that by not allowing a student to recite a prayer in front of a student body at a public school, or join that student body into a prayer, that student’s right to free speech is being restricted. Except one thing they seem to be overlooking is that there is a big difference between saying this:

And I thank God every day for the blessings I have and the strength He has given me to get through the toughest times in my life…

and this:

God, thank you for the blessings in my life…

The former is speaking of faith, the second is expressing it. The former is permitted in a speech before a student body, and atheist students won’t try to say it’s a prayer because it clearly is not. The former is saying that God is thanked every day, and it may generate a few “Amen!”s from the audience, while the latter tries to join everyone in actively thanking God – do you really think a student body that is very, very likely to be close to entirely Christian is going to just let the speaker say a prayer by him or herself? The former speaks of God, while the latter speaks to God.

As such the former will fall under free speech, but the latter falls under the Establishment Clause and Free Expression Clause.

That is the difference between speech and religious expression. Few atheists will attempt to stop a person from speaking about their religion, even at a public school. However once you start not only trying to exercise your religion, but joining everyone else in the exercise, that is where you’ve crossed from free speech to religious expression.

Some would have you believe that there is a fine line between the two, between free speech and religious expression, one that is easily blurred. This is not the case. The line is quite well-defined.

All we ask

Let’s visit a question that few have actually bothered to ask: what happens when a person is told they cannot use a particular platform for religious expression, yet it happens anyway?

Well there’s not much that can be done, and the pious know it. Laci Mattice knew it when she forced a prayer upon a student body – the fact they willingly joined in is immaterial. It is an unfortunate aspect of this whole thing, which is why when an atheist does press the issue of a prayer being said in a venue or upon a platform where it has been deemed illegal and unconstitutional time and again, all we are asking is that you respect the laws to which we are all subject.

Why does that always seem like a tall order?

Respecting the law does mean that there are things you cannot do, even if they are things you really want to do. For example, college students can respect the law by not purchasing, possessing, and consuming alcohol until they reach the age of 21. Yet what happens every weekend during the academic semester on college campuses and in college towns? Underage college students and their enablers are arrested or issued citations for underage possession of alcohol. And those not respecting the law complain about getting busted for breaking the law when they know they are breaking the law.

Well there’s a simple answer: respect and obey the law. Again why does that seem like a foreign concept to people?

It is one thing to complain about a law while still obeying it, but you look like a jackass complaining about a law while you are breaking it or being prosecuted for breaking it, especially if you know you’re breaking the law and your complaints about the law are being directed toward the court of public opinion instead of the court of competent jurisdiction that is trying your case.

Further, where an action or law and the constitution are in conflict, the constitution prevails. Always.

Yet that also seems like a foreign concept as well.

Oh wait, no that’s not the foreign concept. The foreign concept is the idea that there are times where the majority does not prevail. Yet that is the exact reason we have a Constitution and Courts and judges sworn to uphold and defend the Constitution: to ensure that the majority does not prevail in areas where they are trying to trample over a minority. The United States is not a democracy. The United States is a republic. There is a big difference between the two, and if you are not aware of the differences, I invite you to educate yourself on those differences.

In the analysis of this we turn to Medina Valley Independent School District in Western Texas.

Schultz v. Medina Valley Independent School District

On June 1, 2011, the United States District Court for the Western District of Texas granted Christa and Danny Schultz an injunction against Medina Valley in the form of a restraining order enjoining the school district from permitting what could be perceived as student-led prayer from occurring during the upcoming high school graduation ceremony. Citing the jurisprudence cited in this article and much beyond, Chief Judge Samuel Fred Biery ordered specifically that (quoting directly from the order):

  • The District shall remove the terms “invocation” and “benediction” from the program of ceremonies for the graduation exercises. Those terms shall be replaced with “opening remarks” and “closing remarks.”
  • The District, through its officials, shall instruct the students previously selected to deliver the “invocation” and “benediction” to modify their remarks to be statements of their own beliefs as opposed to leading the audience in prayer. These students, and all other persons selected to speak during the graduation ceremony, shall be instructed not to present a prayer, to wit, they shall be instructed that they may not ask audience members to “stand”, “join in prayer”, or “bow their heads,” they may not end their remarks with “amen” or “in [a deity’s name] we pray,” and they shall not otherwise deliver a message that would commonly be understood to be a prayer, nor use the word “prayer.” The students may in stating their own personal beliefs speak through conduct such as kneeling to face Mecca, the wearing of a yarmulke or hijab or making the sign of the cross.
  • The District, through its officials, shall review, and make any necessary changes to, the students’ revised remarks to ensure that those remarks comply with this Order, and shall instruct the students that they must not deviate from the approved remarks in making their presentations.

In other words, those that have been selected by the school to speak during the graduation ceremony may not use that government-provided platform to make a prayer and/or join the audience in making prayer to a specific deity. That was the order.

Needless to say a lot of the press very, very much misrepresented the Court order, which is not surprising. I never trust what the press says in regard to anything coming out of a Court except for whether a particular defendant was found guilty or not guilty. In regard to court orders and decisions, I always seek the original, and you should as well. You’ll find that the press does misrepresent and overstate Court orders… well almost all the time.

Many took the specifics provided by the Judge in the second point to mean specific words that the students may not speak. In general that is true, as the specifics provided are words that are generally associated with prayer. It is not uncommon for a judge to make a general order (“These students…shall be instructed not to present a prayer”) and then follow up with specifics to ensure the order is properly understood and executed. The Court was not attempting to restrict the content of the speech and the students could, as I stated earlier by example, speak of their faith, speak of their deity instead of speaking to their deity.

In vacating this order, the United States Court of Appeals for the Fifth Circuit cited two reasons:

  1. that they “we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school-sponsored.”
  2. “plaintiffs’ motion may be rooted at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words “invocation” and “benediction” on the program.”

Now this only vacates the temporary restraining order that is typically requested prior to an actual trial. This matter is not settled, and the actual trial of facts and merits still awaits the District Court. Personally I do not see the school district prevailing. They have decades of jurisprudence working against them.

The case number in the United States District Court for the Western District of Texas is SA-11-CA-422-FB.

In response the graduation ceremony became a Christian “revival” according to observers.7Kapitan, Craig. (2011, June 4). “Medina Valley graduates hear prayers aplenty“. San Antonio Express-News. In response to the original order, Texas Attorney General Greg Abbot said to Fox News Radio:8Starnes, Todd. (2011, June 2). “Federal Judge Prohibits Prayer at Texas Graduation Ceremony“. FoxNews.com

I’ve never seen such a restriction on speech issued by a court or the government. It seems like a trampling of the First Amendment rather than protecting the First Amendment.

That’s right, he calls the Court’s order that students may not lead an audience in prayer a restriction on speech. Again, prayer falls under the Establishment Clause and Free Exercise Clause of the First Amendment, not the Free Speech clause.

Concluding

Leading audiences in prayer during public school functions has repeatedly been deemed unconstitutional, yet every time such a ruling is handed down, the religious right treat it as a new attempt, as the Texas Attorney General put it, “by atheists and agnostics to use courts to eliminate from the public landscape any and all references to God whatsoever”.

Let me put it this way: atheists and agnostics don’t mind God being in the public landscape. If we did, we’d be campaigning to get all churches and other religious buildings torn down – which would be a shame as architecture has always been one of Christianity’s highlights, in my opinion. Plus there’s what appears to be a beautiful synagogue on Grand Avenue in Des Moines, Iowa, that I think would create a loss for that area if it were torn down or otherwise destroyed. So let me make this clear.

Practice your religion all you want. Just don’t use the arm of the government to build you a platform by which you may exercise your religion. And don’t use any platform provided by the government to exercise your religion either. If you try to do so, we will object.

But bear in mind, too, that agnostics and atheists are not the only ones objecting to attempts by the religious to use a government-provided platform to express and exercise their religion. Remember that with the case Santa Fe Independent School District v. Doe, two families are represented by the moniker Doe: one Mormon, the other Catholic.

All we are trying to do is stop the expression of one religious belief on a government-provided platform by government-appointed speakers, nothing more. In other words, all we ask is that you obey the law. Why does that seem like a foreign concept?

References[+]

Religion

Canning sin

Posted on by Kenneth Ballard / 0 Comment

Have you ever canned food? Are you a Christian? Have you ever considered whether canning food might actually be sinful?

A Christian friend pointed out an article that asks this very question:

Is it biblical to practice food storage? Would it be a sin to do so? How could a believer even go about prepping without falling into sin? And prepare for what… natural disasters? An enemy? Economic instability? War? Terrorism? With such huge ethical questions to answer, it’s no wonder that most Christians don’t prepare in the least.

Article: Should a Christian practice food storage?

The fact the question even needs to be asked shows the penultimate issue with most religion: you must check every action in your life against the holy book that runs your life. Now the noted article ultimately concludes that there is no sin in preparing and using food storage as part of that preparation, but not without making some interesting, if not incorrect observations:

There’s a lot out in the blogging community about “getting prepared” (a.k.a. “prepping” or “food storage”) and the people who adhere to this premise typically fall into one of several categories: they either grew up in a culture where this was common (farmers, for example), or they’re hard core survivalists believing that everyone else is the enemy, or they’re doomsdayers who are fearful of the future and sure the world is coming to an end.  Just like a lot of things in this fallen world, there are some truths and good points each group espouses, but none of these philosophies would be consistent with a Christian world view.

Let’s talk economics for a second before going into the religious undertones. First saving money or saving food: it’s what you do to prepare for the future. For what you are preparing is immaterial. You could be saving food using food storage technologies because money is low and you want to stretch every dollar in your grocery budget. You save money in the bank (or in your mattress, to be old fashioned) instead of spending it to stretch out your budget as far as possible.

We all ultimately fend for ourselves, so preparation for the unknown is definitely necessary. It comes to budgeting and insuring yourself against the future. And if that is a sin, if preparing for the future is a sin, then many, many people are living a sinful life without knowing it.

So why would canning food and practicing food storage be sinful? My mother in law is a devout Catholic, and somehow I cannot see her kneeling in confession to say "Father, forgive me, for I have sinned. I have been canning food!"

The bigger question that needs to be answered is this: why is that question even being asked?

Now I know that some may say that the author of the article was only helping people become better Christians by pointing out that not only is canning food not sinful, but you’re a better Christian if you actually practice canning or food storage. And if you want to think that you’re somehow a better Christian because you’ve got a line of quart and pint Mason jars in your cabinet or fridge, be my guest.

But at the same time, why question whether canning food is a sin?

If Christians are truly questioning every little action to determine if it might fit the definition or description of a sin, I can definitely understand why many formerly-Christian atheists say the first thing they feel after they’ve made the sometimes horrifying transition is a great sense of liberation.

Now yes, I know that arguably a good proportion of Christians don’t question whether every little thing they do might earn them points redeemable for a tortuous eternity. But I doubt that the author of the above-noted article is the only Christian to question whether canning food is a sin, and it wouldn’t surprise me if every action that people take, from driving their cars to wearing a certain style of clothing, has been questioned for sin by some Christians at some point in time.

And therein lies the problem.

Many Christians go through their lives without really questioning their actions, not really all that concerned over whether they are leading a sinful or virtuous life, or a combination therein. Instead of questioning if your actions might be a sin, the only question you should be asking is whether your actions may cause foreseeable harm to others. Canning won’t cause harm to others, and if you’re questioning whether your religious beliefs will permit you to can food, perhaps your religion might be the problem.

So can food and exercise food storage all you want. And I’ll meet you at the farmer’s markets and county fairs to try your latest recipes.

Free speech/Religion/Supreme Court

But it says "Congress shall make no law…"

Posted on by Kenneth Ballard / 0 Comment

The First Amendment to the Constitution of the United States states plainly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Recently in an article on The Right Scoop, this argument was raised regarding a senior reciting the Lord’s Prayer at a public high school graduation:

The left will not stop its intellectually bankrupt relentless attack on Christianity in America. The Constitution clearly restricts the making of laws in order to establish religion or to prohibit the free exercise of religion. A prayer said by a senior, listed on a graduation event program is nothing short of the free exercise of religion and has nothing to do with the creation of any law. End of story.

Commonly argued by the pious right, many have come to believe that the First Amendment allows States to establish an official religion for that State (except where directly enjoined by their own Constitutions), allows students and school officials to join other students in a mass prayer, and all kinds of other things that have been explicitly denounced by the Supreme Court of the United States.

The Establishment Clause states plainly that Congress shall not make any laws respecting an establishment of religion. Let’s break this down using a dictionary commonly available when the Amendment was drafted [Samuel Johnson’s Dictionary of the English Language, 1785 edition: Volume 1, Volume 2]. Two words in particular need to be documented: respect and establishment. We’ll start with the word "establishment":

Establishment. n.

  1. Settlement; fixed state.
  2. Confirmation of something already done; ratification.
  3. Settled regulation; form; model of a government or family.
  4. Foundation; fundamental principle; settled law.
  5. Allowance; income; salary.
  6. Settled or final rest.

One thing that should be clear is that when the First Amendment says "respecting an establishment", it isn’t talking about the act of establishing. Definition 4 from above is what applies here. Establishment is another word for foundation or fundamental principle. Congress shall make no law respecting the foundations and principles of religion. Not any particular religion in general either, but all religion.

Now what does it mean with regard to "respecting an establishment"? Well Dr Johnson’s dictionary has a definition for "respect", but it has a more specific definition for the verb state of that word:

To Respect. v.

  1. To regard; to have regard to.
  2. To consider with a lower degree of reverence.
  3. To have relation to: as, the allusion respects an ancient custom.
  4. To look toward.

So to respect something is to show regard or consideration for it. With regard to the First Amendment regarding Congress’ prohibition on making laws "respecting an establishment of religion", the Constitution is prohibiting Congress from making laws that have regard for the foundations and principles of all religion. Sounds to me like the Constitution is prohibiting Congress from touching religion at all. But why Congress? Does this mean that the Executive Branch is not so enjoined?

Why Congress?

Why is the Amendment addressed at Congress? There is a simple, straightforward answer and it has to do with how the powers of the Federal government were to be exercised.

In looking at the Constitution, you will notice that Article I discusses the legislative branch of the Federal government, and that it is the longest article of the Constitution, even longer, I believe, than any single amendment. Yet if you look at the Federal government, the Executive Branch is by far the largest branch of the Federal government. Congress is actually the smallest, with the judiciary coming in a distant second.

With the Constitution all powers of the Federal government were to originate with Congress. Article I, Section 8 specifically spells out 17 enumerated powers and designates them to Congress. In short these powers are actually categories of permissions that Congress can grant to the Executive Branch by way of legislation. The way our government is supposed to work is that Congress decides what the President (by way of his many departments) shall do, and the President does it (after making an evaluation on whether the law is constitutional).

If Congress doesn’t say "yes", then the Executive Branch cannot do something. However Article I, Section 8 and the Amendments restrict and specifically lay out toward what Congress may say "yes", and with a few things, such as those in the First Amendment, specifically denies Congress the ability to say "yes".

But the First Amendment doesn’t apply to the States

Aside from the States that have provisions in their own Constitutions mirroring that of the Bill of Rights, how is it that an Amendment that says "Congress shall make no law" is applied to the States? The Supreme Court applies the Bill of Rights to the States by way of the Fourteenth Amendment under what is called the incorporation doctrine. The history of the doctrine can be traced back to two cases:

  • Chicago, Burlington and Quincy Railroad v. City of Chicago, 166 US 226 (1897)
  • Gitlow v. New York, 268 US 652 (1925)

The first case applied the "just compensation" clause of the Fifth Amendment to the eminent domain powers of States while the second required States to honor the free speech provisions of the First Amendment.

Section 1 of the Fourteenth Amendment states

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

In prior jurisprudence in the case Barron v. Baltimore, 32 US 243 (1833), the Supreme Court held that the Federal courts could not stop State legislatures from enacting and enforcing laws restricting the rights enumerated in the Bill of Rights. This basically means that any State, or all States, could pass laws denying people within that State any or all of the rights protected by the Bill of Rights. That jurisprudential mistake means that States could, unless enjoined by their own constitutions,

  • establish a State religion and prohibit the expression of other religions,
  • deny the freedom of speech, press, and assembly,
  • take away all guns and rifles and bar ownership of all firearms,
  • quarter State militia troops in your home against your will,
  • deny you the right to counsel in your defense against criminal charges,
  • compel you to testify against yourself,
  • enact cruel and unusual punishments,

among many other things. In other words, under the jurisprudence in Barron, a State government could be downright tyrannical toward its citizens, and the citizens would be powerless to fight back. Article I, Section 9 requires that States always honor the right of habeas corpus, except in cases of rebellion or invasion, so the State cannot arrest you without reason. But under Barron they could deny you a trial by jury, seize evidence without a warrant and absent probable cause, and stop and frisk you without any probable cause. Good thing the Constitution prohibited States from enacting bills of attainder and ex post facto laws.

The Fourteenth Amendment, by way of the Due Process and Equal Protection clauses, applied the Bill of Rights to the States, so said the Supreme Court in Gitlow: (268 US 652 at 666)

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.

By declaring at all that there exist liberties that the States, by way of the Fourteenth Amendment, may not abridge, the Supreme Court set themselves up for a cavalcade of jurisprudence that would result in a jurisprudential landscape by which the States must honor the Bill of Rights. Included in the jurisprudence were Supreme Court cases that limited the interaction of State governments with religion.

The first case to apply the Establishment Clause to the States is Everson v. Board of Education of the Township of Ewing, 330 US 1 (1947). Prior to this case, the Bill of Rights was interpreted as applying only to the Federal government, meaning the States were permitted to grant certain religious denominations certain privileges, whether legislative, effective or miscellaneous. In a sweeping decision by a 5 to 4 vote, the Supreme Court ended it with the stroke of a pen: (330 US 1, at 15, 16)

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

The situation that gave rise to the Everson decision involved taxation for transportation to both public and private schools. Of the private schools that benefited, virtually all were Catholic schools. Writing for the minority, dissenter Justice Rutledge wrote: (330 US 1, at 31, 32)

The [First] Amendment’s purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

Basically Rutledge felt that the decision in Everson, while striking a major blow at the entanglement of State governments with religion, was not sweeping enough. This arguably would be corrected in later decisions, most notably and extensively in application to public schools, though in some ways the Court has only muddied the waters in such a way that it is difficult for individual jurisdictions to determine whether a particular incorporation of religious expression by a government entity is a violation of the Establishment Clause.

Typically the muddy waters are with regard to holiday displays, such as those sponsored by city governments. Displays of the Ten Commandments have come under attack as well. On those, one thing is clear: a display of the Ten Commandments by itself in a government building (courthouse, public school, etc.) is a violation of the Establishment Clause.

But getting back to the article on The Right Scoop, how does this apply to public schools, or, more specifically, prayer at public school functions?

Government entities

Before getting to public schools specifically, a couple principles need to be established.

First, a legislature cannot establish government entities with powers beyond those granted to the legislature itself. Any specific restrictions on the legislature apply to the Executive Branch as well. The legislature cannot establish a government agency with powers beyond those granted by the applicable Constitution, nor can it grant powers to a government agency specifically denied by the applicable Constitutional provisions. To do so would result in tyranny.

School boards, state departments of education, and public schools are government entities, all established by acts of their superior legislatures. This means that public schools and their administrations inherit the same limitations applicable to their superior legislatures. This includes the restrictions of the First Amendment.

Prayer at public school functions

The Supreme Court has ruled in two cases applicable to prayer at public school functions:

  • Lee v. Weisman, 505 US 577 (1992), and
  • Santa Fe Independent School District v. Doe, 530 US 290 (2000)

The Lee case involved specifically the graduation ceremony of a public middle school and a prayer benediction to be delivered by a Jewish rabbi. The student in question was Deborah Weisman, whose parents filed suit on her behalf seeking an injunction barring the rabbi from delivering the benediction. Various facts about the case only served to seal its fate at the Supreme Court. The decision, written by Justice Anthony Kennedy, would state prominently: (505 US 577, at 592)

Our decisions in [Engel] and [Abington] recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

This established what is considered a "coercion test" with regard to prayer and public schools and school functions. This test would be applied in the follow-up case, Santa Fe Independent School District v. Doe, with regard to student-led prayer at school functions, noting specifically

The delivery of such a [religious] message–over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer–is not properly characterized as “private” speech.

One prominent fact about the Santa Fe case that is important to note: there are two families represented by the Doe moniker, one Mormon and the other Catholic.

Let’s look at this from a slightly different perspective.

The ability for students to elect student representatives and the purposes those representatives shall serve is entirely at the discretion of the public school at which the elections shall take place. As such the representative offices created by the school administrations, to be filled by the popular vote of students for particular candidates, are limited by the same applicable Constitutional provisions that limit the school itself, for the school cannot create an office, even an office to be occupied by a student representative, with greater power or ability than itself.

This means that student representatives are too enjoined by the First Amendment to the Constitution when operating within the capacity of their appointment and representation. Which brings us to Laci Rae Mattice.

Laci Rae Mattice

Laci Mattice was a school-appointed student representative chosen to speak at her graduation ceremony. As such her conduct and permitted actions are restricted by the First Amendment. The school even informed her of such before, telling her that the moment of silence on the program was to be just that. Instead she decided that her faith compelled her to thank God, after which she said some choice phrases designed with an attempt to escape the restrictions of the First Amendment – which her appointment by the school makes the First Amendment inescapable – before reciting the Lord’s Prayer.

She exceeded the scope of the authority granted her by the school and violated the religious rights of everyone in her graduating class, not just Damon Fowler, the atheist student who objected to the inclusion of a prayer in the graduation ceremony.

Despite what Mattice said, her actions were not compelled by her faith, but by her own willful disregard for the Constitution and her own willful disrespect of her fellow classmate. Other atheists around the blogosphere have commented that Mattice’s actions were more of a "Fuck you!" to atheists than a "Thank you" to God.

I am inclined to agree, as the evidence is overwhelming that the thought running through Laci’s mind as she approached the podium was simply this: fuck what that student has to say, I’m doing what I want, and let’s see them try to stop me.

Her actions, however, could lead to civil liability for the school if the principal had reason to believe that Mattice would perform the actions that took place and did nothing to stop her. As for whether Mattice herself could be held liable – well that’s up to the Courts to decide. And personally, I would support any lawsuit by Damon Fowler against Laci Mattice. I believe it would be the first of its kind.

Links and resources

Law/Life/Religion

Retraction

Posted on by Kenneth Ballard / 0 Comment

Yesterday I alleged that I had been blocked from commenting on the right-wing blog “The Right Scoop”. This allegation is not correct according to an article posted this morning by The Right Scoop. Apparently a number of people, including those with conservative-leaning political views, also were blocked due to an apparent glitch in the Disqus (pronounced “discuss”) system. As such they have gone away from Disqus and have reverted back to WordPress’ built-in comment system with registration required.

As Disqus is the commenting system currently employed by this blog, I think I may be investigating other options. One option I’ve discovered is called IntenseDebate, and I’ve also considered using plugins that link commenting up with Facebook, but I think that would more discourage commenting and discussion than encourage it.

What are your opinions? Do you think using Facebook for commenting be more encouraging for discussion since a lot of people are on Facebook now? Have you heard of other systems that you think may be worth it? I’m open to suggestions.

But again, it appears I was not blocked by a moderator on the site, so I retract that allegation. The one thing that was intriguing is that the comments that were edited by moderators reverted to their original text after they turned off the Disqus system, so you can see what was originally posted as comments before they were edited. And again, debate and dissent will always be welcome here. If you start a flame war, however, I’ll pull out the fire extinguisher.

Law/Life/Religion

Unwelcome dissent

Posted on by Kenneth Ballard / 0 Comment

In the comments on my blog you will always have a fairly wide berth for discussion. Disagree with me and anyone else who posts all you want. The only “rule” I have is that you not lower yourself to the level of attacking a person instead of the points of their argument. Doing so reduces a discussion into a near-endless flame war, bringing any possible discussion to a complete standstill, a pileup on the interstate of discourse and discussion. Discussion is welcome. Dissent is welcome. Flame wars and personal attacks are not.

Many other sites will afford you the same, however, some aren’t so willing. Some aren’t into discussion, only ego-stroking, apparently.

The right-wing blog “The Right Scoop” recently posted an article discussing a “brave” senior named Laci Mattice who openly engaged her senior class in the Lord’s prayer during what was supposed to only be a moment of silence during the graduation ceremony. The writer behind the blog ascribed her actions to the Free Exercise Clause of the First Amendment:

A prayer said by a senior, listed on a graduation event program is nothing short of the free exercise of religion and has nothing to do with the creation of any law. End of story.

I disagreed. The Establishment Clause controls, and I posted this to define and support that opinion, based on a long line of jurisprudence extending back approaching 70 years:

Actually the Free Exercise Clause does not apply to this case. Allow me to explain why.

First and foremost, any institution established by the government becomes subject to the same limitations upon their powers and abilities as on the government that created it, for if the government is able to establish an institution with greater power than itself, we have tyranny.

The First Amendment restriction upon Congress implied that all actions of the government begin with Congress. This is why Article I is the longest article in the entirety of the Constitution. Restrict Congress and you restrict the entire Federal government, because the Executive Branch cannot do anything not authorized by Congress, or at least that was how it used to work. Unless Congress says “yes”, the Executive Branch cannot act, and Congress is enjoined by the Constitution in what they can say “yes” to.

The Fourteenth Amendment extends the limitations of the Bill of Rights upon the States and municipalities.

School boards are created by acts of law of the governments of each State, thus the same limitations upon the legislatures are inherited by the individual school boards, and thus the individual schools and their administrations, including the principal. Graduation ceremonies are official school functions, sanctioned by the school and school board by official act. School administrators may not design official school functions in such a way that it exceeds the limitations they have inherited from the very government that grants them any authority at all. This includes the limitations of the First Amendment.

These limitations are also inherited by those who are chosen by the school to speak during the ceremony — they are enjoined by the same limitations that enjoin the government due to their appointment by the school for the school function. Thus Laci Mattice exceeded the scope of her appointment by her attempt to join everyone together in prayer, thus she violated the First Amendment.

Again, this is based on decades of jurisprudence. And as you can tell the comment is fairly well-written, not heated or pointed in any way. A basic and brief overview of why public schools cannot endorse or sanction prayer — private schools do not have the same limitations because they are not entities created by an act of government.

And this comment, apparently, was enough to get me banned from commenting at The Right Scoop. An unregistered user going by the moniker “Valley Bash” spoke in support of my comment, and came under attack as well. Other comments that have also pointed out the impropriety of Laci’s actions have been edited by a moderator — I have the e-mail notifications showing the original text of the comments to show this.

Now it is perfectly within their right to do this. Going to their site is about the same as walking onto someone’s property. If they don’t like what I have to say, they can take whatever steps are reasonable to prevent me from stating my opinion there in the future.I knew that by commenting on the site I was risking being blocked. However it is also cowardly and disingenuous, and implies that the only people they want posting comments are those that already agree with the hard-right Christian conservative point of view. This basically means that if you don’t believe that the First Amendment gives Christians the right to engage anyone, anywhere in public prayer, including at public school functions and other government-sponsored events, then you are not welcome, despite the fact that such a belief does not jive with the law, decades of jurisprudence, and any idea even marginally in line with religious freedom and proper discourse.

Now while I have spoken harshly of religion on this blog, notably Christianity, I will always defend your right to practice your religion in peace. But once your beliefs enter the public square, or you put them on public display, they are fair game with regard to debate and discussion. No person’s beliefs, including my own, are immune from discussion and debate. Further while you have the freedom to practice your religion, protected by the First Amendment, that does not mean you have the right to use the captive audience of a public high school graduation ceremony to put your religious beliefs on display.

Religious expression is to be a purely private matter. The words of Jesus Christ even speak as such: (Matthew 6:1-6)

Take heed that ye do not your alms before men, to be seen of them: otherwise ye have no reward of your Father which is in heaven. Therefore when thou doest thine alms, do not sound a trumpet before thee, as the hypocrites do in the synagogues and in the streets, that they may have glory of men. Verily I say unto you, They have their reward. But when thou doest alms, let not thy left hand know what thy right hand doeth: That thine alms may be in secret: and thy Father which seeth in secret himself shall reward thee openly. And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

Again, disagree with me all you want. Express your dissent. It will always be welcome here.