Oh, He Comes From Alabama With A Bible On His Knee

Once again, I'm unable to resist giving a silly title to a post.

A great deal is being written and said about the recent decision of the Alabama Supreme Court in the case of Burdick-Aysenne et al v. The Center for Reproductive Medicine, et al,  involving frozen human embryos.  This post relates to the opinion in that case, but not in any significant respect to the majority opinion, concurring opinion or that of the dissent.  Far more interesting to me is the "special concurrence" of the Chief Justice of that court.  

It's always fascinating to read court decisions which manage to "grab the headlines" for one reason or another (can we still use that phrase or is it too dated?).  Generally, the decisions themselves are different from the summaries or interpretations of them which appear in the major and social media.  This case was one for wrongful death and for negligence regarding the destruction of certain frozen embryos, or the killing of them as the court puts it.

Alabama law provides a cause of action for wrongful death including the death of children, born and unborn.  The primary legal issue addressed by the court was whether "unborn children" include frozen human embryos for purposes of the wrongful death law of the state.  The majority found that they are included among "unborn children."  And that was, or at least should have been, that.

Where I practice, there is no such thing as a "special concurrence."  For good reasons, I think.  A search reveals that it is an opinion of a member of the court which concurs with the decision of the majority, for entirely different reasons than those relied on by the majority.  Indeed, it need not really relate to the case itself.  It need not address any of the issues raised or addressed by the litigants or the lower courts from which appeal was made.

Simply put, it may be entirely gratuitous.  Normally, appellate judges refrain from addressing issues and arguments never raised in the courts below.  Part of the reason for refraining from doing so is that the parties and the lower courts never had the opportunity to consider and speak to them.  But this concern, it seems, need be of no concern to authors of special concurrences, and clearly was not a concern of the Chief Justice of the Supreme Court of Alabama in this case, who authored an opinion regarding which "gratuitous" may be too mild a description.

An amendment to the Alabama Constitution adopted in 2018 provides that Alabama, as a matter of public policy, supports "the sanctity of unborn life and the rights of unborn children, including the right to life."  This provision is briefly noted in the majority opinion but isn't relied on it to any significant extent.  Notwithstanding that fact, however, the Chief Justice decides to "take this opportunity" to address its meaning and legal effect, with particular focus on the proper interpretation of "the sanctity of unborn life."

There follows a discourse by the Chief Justice 22 pages in length, in which God is referred to 41 times. That's a little less than twice on each page. God isn't referred to except by the Chief Justice.  The other opinions and Justices manage to address the case without invoking God or the fear of God, which as we'll see is called on if not summoned in support of the opinion of the Chief.  He also refers to the Book of Genesis, the Book of Jeremiah, the Book of Exodus, portions of the works of Thomas Aquinas, Augustine, John Calvin and Jonathon Edwards, as well as several commenters on the Bible.  I feel a certain compassion for the Chief Justice's clerk, who may have thought the research and writing involved in that position wouldn't address religious and theological works in such detail.

Rendered to its essence, the special concurrence amounts to an argument, or perhaps more properly a declaration, that the 2018 amendment to the Alabama Constitution must be considered, and followed, as a religious injunction.

This is made apparent from the concurrence's conclusion.  The Chief Justice concludes his opinion with language of a kind I've never seen included in a legal opinion of any court during nearly 45 years of practicing law.  It's so remarkable I must quote it:

"The People of Alabama have declared the public policy of this State to be that unborn human life is sacred. We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness. It is as if the People of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: "Before I formed you in the womb I knew you, Before you were born I sanctified you." Jeremiah 1:5 (NKJV 1982). All three branches of government are subject to a constitutional mandate to treat each unborn human life with reverence. Carving out an exception for the people in this case, small as they were, would be unacceptable to the People of this State, who have required us to treat every human being in accordance with the fear of a holy God who made them in His image."

The language is pontifical; thus the "We believe"--he purports to speak for the people of Alabama, much as a pope may purport to speak for Catholics everywhere in a certain capacity.  More than that, he makes what is essentially a religious claim, and maintains that all three branches of the State of Alabama are required to follow it "in accordance with fear of a holy God..."  Those who disagree with the Chief Justice, it appears, run the risk of being the subject of God's wrath. It seems that there are still those who conflate religion and the law.  History tells us this is dangerous.

I wonder, I must admit, how he defines "likeness."  But I wonder about that generally when it's claimed that God made us in his likeness.  I can't understand how anyone would want God to be like us, or would worship God if he was.

I don't know if special concurrences are accorded any weight in Alabama,  Concurrences generally are not binding precedent.  I hope that this particular one would be considered, at most, persuasive.  If it is the majority decision alone that's precedential, I don't think a theocracy has been established by it.  One may well disagree with the Alabama Supreme Court's decision regarding the unborn, but it arguably follows from the law of that state and avoids the spectacular excesses indulged in by its Chief Justice.  It must be hoped it will continue to do so.

The President as Shill

Shown above is coinage of the Roman Emperor Marcus Didius Severus Julianus, who reigned for all of nine weeks in 193 C.E.  That was long enough, apparently, for coins to be minted.

That may be all that transpired during his rule.  He's famous, or rather infamous, because he was the winner in an "auction" the Praetorian Guard held to determine who would be the successor to Commodus, an emperor also well described as infamous.  Later, he was assassinated by the Praetorians.

The auction is shown in a scene in the movie The Fall of the Roman Empire, starring Sophia Loren, Alec Guinness, Christopher Plummer, Omar Sharif, James Mason and Mel Ferrer.  Guinness played Marcus Aurelius, and Plummer played Commodus, making him appear a lunatic, which he may have been.  It was quite a cast, worthy of a picture nominally depicting the fall of Rome.  But the Empire didn't fall in the West for about another three hundred years, and in the East survived for a thousand years or so after the West.  So, the movie wasn't historically accurate in that respect, at least.  I think historical accuracy wasn't all that important to the creators of the film; they probably meant that the auction, being so absurd and contemptible, was a sign of the decay of the Empire and perhaps even hastened its fall.

H. L. Mencken, the Sage of Baltimore, is credited with saying regarding American elections that "[e]very election is a sort of advance auction sale of stolen goods."  He would have revelled in the election now taking place in our Great Republic.  

It's a truism that our elections involve the selling of a candidate in remarkably the same manner in which product is sold, and it may be said that the eventual winner of an election has been bought as a result, the accumulation and expenditure of money being essential to our politics.  But as far as I'm aware a candidate for high office here hasn't been personally involved in selling products as part of an election campaign.

Until now, of course.  Absurdly priced golden sneakers, cologne, wine, silly cards depicting him as a superhero and God knows what else, all emblazoned with his name, are being promoted by a candidate for the nation's highest office.  It's difficult to conceive of conduct which would do more to cheapen not just the office of President but the nation itself.  Not even the Praetorian auction can rival the debasing effect of these activities.

The spectacle of a candidate (a former president) selling self-promoting products of this kind makes him appear shabby.  Not that he has ever seemed more than shabby, but this makes him look peculiarly shabby. One understands he has large legal and other bills, and now has sizable judgments and fines to pay, and his unusually gullible supporters are willing to do what they can to pay them for him.  But being a shill for the purpose of making money from the sale of gaudy and tasteless momentos is a step too far, or too low, for a President of the United States.  He may as well work as a carnival barker or traveling salesman of testosterone pills.  It's typical of the man himself, who it seems is devoted to scamming people and lacks any honorable and worthy virtues; this is true.  And it seems to have become typical to many citizens as well in that they welcome and applaud his crassness.  I suspect beer or some other beverage will soon be sold as well.

Used cars are a possibility as well, of course.

Does this example (his and his followers) represent what Americans seem to be to others around the world?  Loud, ignorant, bombastic, self-pitying, resentful, crass, out to make a quick buck by any means, pushy, loutish cretins?  Or is this how we've always been viewed, and portrayed?  If the latter, are we now proud of living up to the caricature?

The Agony of the Feet

I apologize.  I couldn't resist using the title to this post.  It, and this post, is a reaction to the remarkable and disturbing commercial shown during last night's Super Bowl courtesy of the entity known as "He GetsUs."

Commercials for religions are, I suppose, to be expected in our Great Republic, where religion is itself commercial more than anything else.  I'm not a fan of them, but think it interesting to consider their merits as commercials, if not as religious.

 How explain it?  For that matter, how describe it?  One can see it in all its creepy glory easily enough, of course.  It's there and presumably will be forever, thanks to the Internet.  Perhaps its should be seen at least once, as a kind of penance, appropriately maybe, though that may not have been the intent of its creators.

Just what was the intent?  According to the Gospels, or at least some of them, Jesus washed the feet of his disciples.  It is, or at least was, something the Catholic Church made its priests do on Holy Thursday.  I remember it being done, in any case.  Not by me or to me, happily.  It's not something I would do, I admit, nor would I want it done to me.  Leave my feet alone, please, I would respond to anyone offering to cleanse them.

I imagine that the intent was to make us all reflect on the fact that we're no better than anyone else, as the foot washers depicted engaged in the solemn vignettes were generally stereotypical opposites of those depicted having their feet washed.  We are thus all equally worthy of having our feet washed and washing those of others.  It's a humbling observation, no doubt.  It's also a peculiar one.  Communal washing of feet isn't something normally done, these days, especially if it's done by some to others.  One would think there would be a less odd way of making the point.  HeGetsOurFeet?  Why?  Feet washing isn't what it used to be, it can safely be said.  Didn't people wash their own feet in the 1st century C.E., in Palestine or Judea?

My guess is that they typically do so now, most everywhere, at least where the Super Bowl is shown.

It seems not to have occurred to those who foisted the commercial on the millions watching the game that displays of feet washing, particularly lingering, loving washes, aren't attractive to most of us.  They may be very attractive to some, but I daresay those who find them so are in the minority.  That appears clear from the reactions to the commercial I've seen.  Sometimes people are appalled by it, sometimes they're amused by it.  Inevitably, the fetish associated with feet is mentioned by some commentators, with a kind of leer or giggle.  All these reactions should have been predictable.

This Super Bowl was in many respects unremarkable, even dull, but for the overtime portion of the game.  For someone like me, not a fan of either team and not particularly interested in the much talked about romance which was played up so extensively, the outcome wasn't welcomed; we've seen far too much of the winners already.  As to the half-time show, it was very Vegas, but in Vegas that isn't extraordinary.  

But it was remarkable in the sense that it's now apparent that one must be very rich to attend this spectacle.  It has become like so much in our society a pastime of the only very well off.  That couldn't be said even of the Roman spectacles, which gave the best seats to the rich and powerful but allowed room for those less fortunate.  The very rich  are very different from the rest of us; Scott Fitzgerald's comment is more telling now than it was then.  This is the common state of our social affairs.  

It's is also remarkable, though, because of this commercial.  This Super Bowl will be remembered as the one featuring wet, glistening, and very clean feet.

Blessings in Disguise

Every now and then, I comment in this blog on news related to the One Holy Catholic and Apostolic Church ("OHCAC") that took up much of my time in my increasingly distant youth, though it now does so only sporadically.  At the moment, I'm interested in the controversy surrounding Fiducia Supplicans, which it seems is a declaration on Catholic doctrine issued with the support of the Pontifex Maximus allowing priests to bless...well, I'm not sure what, frankly.  It seems, though, to allow blessings of a sort to be made to couples engaged in an irregular or same-sex relationship.  This sort of blessing doesn't constitute a validation of the relationship, however, which remains forbidden.

I admit to some confusion.  I'm a lawyer, and so am not phased by distinctions which may baffle normal people.  I can accept that a relationship may be recognized without being validated, or sanctioned.  I can also accept that those involved in a relationship may be blessed though the relationship itself may be forbidden (well, for religious purposes in any case--religions forbid so much after all).  Sinners may be blessed by my understanding, so I suppose that, if OHCAC determines being in a same-sex relationship is sinful, the sinning participant may yet be blessed by a priest.  The problem, if any, arises when the relationship itself is blessed, it seems.  That at least is the position being taken by those functionaries of the Church who object to the declaration.

Let me be clear.  I have no dog in this race.  I don't think such relationships are sinful.  Priest may and do bless pets, which I find charming.  They bless things, and places.  So be it.  I can't recall whether the Gospels or any part of what's considered the New Testament condemns these relationships.  I'd be surprised if Jesus ever directly addressed them, as I think sexual relationships and sex in general weren't matters of great concern to him.  That they are to Catholic clergy is, alas, all too obvious.  This particular kind of sexual relationship is in any case thought to be contrary to doctrine or even Scripture by those who oppose Francis in this matter. 

I think there's a problem with this position, if it is the fact that one is involved in such a relationship that constitutes the sin.  If persons A and B are sinners because they're involved in a same-sex relationship, but nevertheless may be blessed individually, what is it that forbids their relationship from being blessed?  That a relationship exists must be taken as given; that's why those involved in it are sinners (though they are no doubt sinners for other reasons as well; this is assumed by OHCAC, of course).  Is it believed that the relationship is distinct in some sense from those participating in it?   But how can that be the case?  Without them, there would be no relationship to be condemned.

I've seen it claimed that blessing the forbidden union would be like blessing an abortion clinic.  Although, according to some, a woman who has an abortion may be blessed as a sinner in some circumstances, an abortion clinic may not be blessed; such is the argument as I understand it.

The analogy strikes me as less than perfect, however.  A relationship is not a clinic.  If it is a sin to have an abortion, it must be a sin for a doctor to be involved in the abortion as well it is a sin for a woman to obtain one.  There's a doctor-patient relationship involved; both are sinners if having an abortion is a sin.  Yet it seems both, as sinners, may be blessed.  Is it the doctor-patient relationship that is condemned rather than the clinic?

Well, it's an interesting dispute, but happily one which need not concern us, or at least me, except perhaps as part of the history of an ancient and still in some ways fascinating institution. It's unfortunate that sex is so much a part of it and its concerns, and for that matter its own sins, both of omission and commission.