Friday, January 13, 2006

And speaking of the Supreme Court...

Yesterday's New York Times recounts a disturbing case now before the Supreme Court. Paul G. House, a Tennessee man who is on death row for the rape and murder of a neighbor, Carolyn Muncey, is appealing his conviction on the grounds of new DNA evidence. While the evidence does not conclusively exonerate him, it negates a key piece of the prosecution's case at his 1986 trial.

Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing, while DNA testing later showed it to be her husband's. ... The defense theory was that the husband, Hubert Muncey, was the killer. The new legal team that represented Mr. House in his habeas corpus petition produced witnesses who testified that they had heard Mr. Muncey make a drunken confession, but the federal district court discounted the evidence in rejecting the petition in 1997.


And who would be against a retrial in such a case? The state of Tennessee, for one. And Justice Antonin Scalia.

Addressing Mr. House's lawyer on Wednesday, Justice Scalia said he agreed that the case now looks "much closer" than it must have appeared to the jury in 1986. But that was not the issue, he continued. "Once the case has been tried, we have a much different task," Justice Scalia said, namely to determine "whether any reasonable jury could have found guilt."

Only if the answer was no could a federal court proceed to hear a petition for a writ of habeas corpus and consider whether constitutional errors that had not previously been identified had occurred at the trial. The Supreme Court's leading precedent on this question, a case from 1995 called Schlup v. Delo, refers to this hurdle as a "gateway" through which an inmate must pass. It is, Justice Scalia said, "a very heavy burden" for the defense to meet.

Mr. House's lawyer, Stephen M. Kissinger, replied, "It is a high burden, and we don't shrink from it."

...

Mr. Kissinger, an assistant federal defender from Knoxville, Tenn., challenged Justice Scalia's description of the gateway. "It comes down to the 'could' and 'would' distinction," he said. "We don't deny that there is evidence that 'could' support conviction, but that's not the test. What 'would' a reasonable juror conclude? Proof of innocence does not have to be absolute."

So the difference between a man's life and death hinges on the difference between "could" and "would." It sounds like something out of a very black comedy satirizing the courts.

I don't object to the death penalty on principle; however, I think that the possibility of executing an innocent person poses an extremely serious challenge to the capital punishment. If we are going to maintain this institution, we should at least take every step humanly possible to ensure that we are certain beyond any reasonable doubt of the guilt of the condemned. Here, the new evidence clearly could have (and, in all probability, would have) made a major difference in the trial -- even if it's possible that the jurors would have still come to the same conclusion.

This shouldn't be a conservative-vs.-liberal issue. If conservatives are still the champions of limited government, surely they should be concerned with limiting the government's ability to take a man's life without every conceivable safeguard.

According to the Times, it is likely that at least five justices will back House and he will get a new trial. It should have been 9-0.


Update: My friend Eugene Volokh writes:

But wouldn't the same argument operate as to life imprisonment? Perhaps it's not quite as wrong to keep someone locked up for life (or even 30 years) if there's strong evidence that he's innocent as to execute him then, but it still seems pretty wrong.

Also, I take it that Justice Scalia's response in either case is that "wrong" doesn't mean "unconstitutional." States are free to provide post-conviction review of newly discovered claims of actual innocence; some do this through special procedures, and others through clemecy decisions by the governor. But there's no constitutional requirement of this extra procedure, once a fair trial has taken place.


I agree on the first point, of course; it would be a monstrous injustice to continue to hold someone in prison, without a new trial, despite this kind of potentially exculpatory evidence. One big difference, though, is that at least if the person remains in prison, the fight for his release can continue. Execution is irreversible.

As for the second point: perhaps I'm being non-lawyerly here, but to me, the notion that the courts should allow an execution of a clearly innocent person to proceed as long as there were no procedural violations at the trial shocks the conscience as well as common sense. (It's the other extreme from the idea that the perpetrator of a heinous crime should go free on a procedural technicality.) I realize that appellate judges are not supposed to be triers of fact. But the Fifth Amendment to the Constitution says that no one can "be deprived of life, liberty, or property, without due process of law"; and it seems to me that denying a new trial after the discovery of significant new evidence is a flagrant violation of "due process."

Scalia's proposed standard seems to be that if there is any reasonable possibility that the jury would have found the defendant guilty even with the new evidence, the conviction should stand. I would not go so far as to say that a reversal is warranted if there is the slightest chance that the new evidence would have resulted in an acquittal. But a "preponderance of the evidence" standard seems reasonable in such a situation, and in this case -- if the Times report is accurate -- it seems more likely than not that the new DNA evidence would have altered the outcome of the trial. (The claim that House's semen was found on the victim's clothing provided not only physical evidence against him but also the motive, since the prosecution argued that House killed Muncey in the course of a sexual assault.)

Finally, what troubles me about Scalia's position (again, as outlined in the article) is that, aside from the issue of constitutionality, he does not seem particularly bothered by the wrongness of executing House. It was the same thing that troubled me about Scalia's dissent in Lawrence: unlike Clarence Thomas, he did not simply believe that anti-sodomy laws were constitutionally permissible, but clearly didn't see anything particularly wrong with such laws.

I am reminded of Scalia's 2002 speech in which he observed that opposition to the death penalty is correlated with the growth of secularism:

I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” ... For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!


Does Scalia, perhaps, believe that for the believing Christian, it is "no big deal" to send an innocent person to his death (as long as it's not done "intentionally"), because God will fix it all by rewarding the sufferer in the next life? If so, that's a rather scary interpretation of the role of religion in public life.

38 comments:

jw said...

I feel strongly that the death penalty --if we are going to have it-- must be restricted to only the strongest cases. This is not such a case.

Worse, the gateway described is close to insane. This is a case which begs a new trial. The DNA data is too strong to reach any other conclusion.

Revenant said...

If conservatives are still the champions of limited government, surely they should be concerned with limiting the government's ability to take a man's life without every conceivable safeguard.

Well, every test the state has to pass before punishing a person reduces the risk of an innocent person being punished, but no test reduces that risk to zero. No matter how many times you go back and review the case, there's always the chance that the next review will be the one that would have cleared him.

But at some point you have to either say "this is good enough" or give up on the idea of punishing the guy at all.

Anonymous said...

revenant,

I put to you this quote from Mr. Justice Frankfurter, in reverseing a position he had taken in a previous case,

Wisdom too often never comes, and so one ought not to reject it merely because it comes late.
-- Felix Frankfurter

al fin said...

Some (all?) governments are too reluctant to admit that they may have made a mistake. In cases of death sentences, any credible evidence of innocence has to be evaluated objectively.

William R. Barker said...

"Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing..."

"Suggested," huh? So the jury knew that it was a theory as opposed to hard fact? Is that correct?

Listen... before I continue let me just say that from reading Cathy's post, even without further research, if it were my decision I'd err on the side of caution and at the very least hold off on executing House and perhaps even go so far as to sanction a retrial.

All that said... as Rev pointed out, you're rarely if ever going to be totally 100% sure of a person's guilt.

Does the above reality lead to the inevitable conclusion that the death penalty is just "too risky" for our society to tolerate? Well... reasonable people believe that to be the case. On the other hand, equally reasonable people believe since there's no such thing as zero risk you've got to go with the tightest standards you can come up with and that these standards are reliable enough to justify the death penalty as the ultimate punishment.

As to the law as it exists... I fear Justice Scalia is correct. Difference belongs to the original triers of fact.

"So the difference between a man's life and death hinges on the difference between "could" and "would?"

Yes... it does. At least if the Justices stick to the letter of the law.

"It sounds like something out of a very black comedy satirizing the courts."

Yes... it does. Nevertheless... that's how the system is supposed to work.

Bottom line, playing by the rules, it's up to the Governor or the President to intervene with clemency should the courts fail to intervene.

Lori Heine said...

There used to be room, in American governance, for being a decent human being. Justice Scalia, and other ideologues like him, are living proof of exactly how insane our nation is becoming.

Any man (or woman) wrongly convicted should -- when evidence to that effect comes to light -- get a new trial or be set free.

The first immigrants from England and Europe came to these shores for the freedom to be decent, God-fearing people. Now people like Scalia pose as God-fearers and soil the name of Christian with their malice. Absolutely shameful.

William R. Barker said...

Hey Lori... let me ask you... how much do you know about Justice Scalia? I mean... how much first hand knowledge do you have of the man - not from knowing him personally, but from reading his actual opinions?

Listen... I'm assuming nothing here. Don't take my question as accusatory - it's not. For all I know you're a constitutional scholar. Even if you're not, you could well be very familiar with Scalia's writings.

If not, though... may I respectfully suggest that you go to a library or bookstore and pick up "Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice," edited and with commentary by Kevin A. Ring?

You're just wrong in calling Scalia an ideologue. He's an idealist. You may not "like" him or agree with his opinions, but the man is unquestionably a brilliant legal scholar and Justice and certainly a man of integrity.

There is indeed room in America for "decent human beings," but when it comes to the law the "process" doesn't always lead to the end results you or I would like to see. Like it or not, judges are - and should be - constrained in their powers just as all government officials are and should be.

As I pointed out in a previous point... the final authority to "ignore" the end process of the legal system belongs to the state and/or federal executive in terms of that person's constitutional authority to pardon a convicted felon or lessen the sentence.

BILL

Anonymous said...

Volokh is wrong. The same argument does not apply to life imprisonment simply because in that case you always have a chance to take it back and make restitution to the person you have wronged, should that person prove to be innocent. If you do the death penalty wrong, the state has committed manslaughter.

Lori Heine said...

I know the man treats gays as if we're subhuman. I don't know whether YOU are a constitutional scholar or just a comfortable and complacent straight guy, but take it from me. When people speak of you as if you're evil incarnate (and unlike me, Scalia is a frickin' Supreme Court justice, with the power to do real and enduring harm to my everyday life), it tends to make you a bit testy. Just so sorry if it tends to make me respond in kind.

Rhetoric alone has consequences, totally apart from anything enacted under the law. Ask Matthew Shepard. And no, I doubt that Scalia had anything to do with the kid's getting crucified on a barbed-wire fence in Wyoming. But the net effect of ALL the anti-gay rhetoric out there, from everybody who contributes to it, is indeed an influence.

Sure individuals are responsible for what they do. Next time I hear footsteps behind me late at night, I will remember that Justice Scalia has nothing to do with the possibility that I might end up like the cases that keep cropping up in the news. Hell, I'm not a constitutional scholar -- just a private citizen. My taxes only help to pay Scalia's salary, so what they hell right have I to criticize him?

One of my best friends and her eight-year-old daughter were nearly murdered because of a rainbow sticker on their truck (free speech? can't have that, either). And everybody who contributes to the ignorant resentment of people the Religious Right misunderstands does have their two cents in it. Sometimes real-life experience counts for something, too. Maybe you can make me look ignorant by regarding me with condescension. Or maybe you know less than you think you do, yourself.

mythago said...

The idea that it's OK to kill someone because you're sending them on to a better place is one that mainstream Christianity has not followed for, um, a couple of centuries, at least. Talk about your originialism!

william, I suggest you read Employment Division v. Smith. I used to think well of Scalia, too.

Lori Heine said...

Someone who believes that opposition to the death penalty is correlated with the growth of secularism is INDEED an ideologue. The Religious Right is trying to impose its agenda (which is, despite their claims, as secular as anything the Left has ever come up with) on the rest of the country.

Scalia goes out of his way to identify with the Religious Right. If you lie down with dogs, you're going to get up with fleas. All the legal hocus-pocus in the world will not obfuscate that very basic moral truth.

We do suffer, in our society today, from a very slippery sense of morality. But the Right is every bit as much responsible for this downward slide as the Left has ever been. Gays, lesbians, feminists, illegal immigrants and other assorted scapegoats serve the purpose of keeping us from coming to grips with our real moral malaise.

Innocent people, wrongly convicted of crimes, who are to be sacrificed to an ideology that supports the death penalty simply for its own sake, are yet further proof of how political ideology is being allowed to erode common human decency. Our modern-day Pharisees are guilty of the same sort of gymnastic moral reasoning as were their forebears in Jesus's time.

Anybody who claims to be a Christian, yet succumbs to such reasoning, has a lot more to answer for to Christ than do any of those the "Let-us-all-worship-and-ignore-Jesus" crowd seeks to condemn.

Every day in this country, gay kids kill themselves or are thrown out onto the streets to sell their bodies in order to stay alive. Let's find a Scalia ruling that justifies THAT.

Revenant said...

The Religious Right is trying to impose its agenda (which is, despite their claims, as secular as anything the Left has ever come up with)

Um, no. Creationism, to name just one example, is in no way "secular". Neither is school prayer.

You're also off-base in blaming the death penalty on the religious right. Substantial parts of the religious right are against the death penalty, including the Catholic Church (which Scalia belongs to). Support for the death penalty isn't exclusive to any particular "agenda", unless you count "being a typical American" as an agenda -- majorities of men and women, Democrats, Republicans, and Independents, young and old, rich and poor, religious or nonreligious, all support the death penalty.

Anonymous said...

Another problem with the mal-administration of justice lies here: Death-penalty defendants are forced to meet an intolerably high burden in having their cases reviewed or retried after incompetent representation at the trail level. But those merely receving life, or long term sentences lack even the meager protections afforded death-penalty cases, and have little chance the Innocence Project or other public interest law firms will bother to investigate their cleims. Hence, we have no idea how many thousands languish for decades in prison for crimes they never commited.

Cathy Young said...

I don't think the death penalty is a major part of the agenda of the religious right. A lot of pro-life activists oppose capital punishment as well as abortion.

As for Scalia: I do think that some of rulings definitely show an ideological agenda.

If you read Thomas's dissent on Lawrence, he basically says: Yes, this is a dumb law, but there's nothing in the Constitution that says a state can't have one of those. (I think Thomas even specifically noted that if he were a Texas legislator he's vote to repeal it.) If you read Scalia's dissent, it's pretty clear (to me at least) that he thinks anti-sodomy laws are a pretty good idea.

And the fact that he would invoke the idea of rewards in the next life as a rationale for supporting the death penalty is pretty scary.

Wasn't it the officer who oversaw the slaughter of Protestants on St. Bartholomew night who said, in response to some of his men's objections that some of those targeted might be good Christians, "Kill them all -- God will sort them out"?

Of course, that was some 430 years ago...

Lori Heine said...

I am not necessarily saying that the Religious Right (or even the political Right) is solely responsible for, or supportive of, the death penalty. I'm saying that those elements of these factions that do support it have have become irresponsibly ideological about it.

I do not necessarily oppose the death penalty myself, but believe that it must be administered fairly and with a genuine concern that justice is done. To get reckless about the concern for justice, in a blind loyalty toward the concept of the death penalty in and of itself, actually imperils the future of the death penalty in America. Those who do oppose it point to the abuses of justice that have occurred, or that are possibly yet to happen, as the supposed reason why this entire form of punishment should be abolished.

If we do believe it works as a deterrent to certain forms of heinous crime (and I agree that it might), then it behooves us to see to it that the public has no legitimate gripe against it.

David Nieporent said...

Lori, you write:

Any man (or woman) wrongly convicted should -- when evidence to that effect comes to light -- get a new trial or be set free.

But that misses the point. Scalia's job, as a Supreme Court Justice, is not to decide what "should" happen. Scalia's job is to decide what the Constitution requires. The Constitution is not a tool to cure every societal problem.

Moreover, saying "when evidence to that effect comes to light" begs the question. The question is what standard is to be used to decide whether the new evidence shows that the person was "wrongly convicted."


Anonymous, you write:

Volokh is wrong. The same argument does not apply to life imprisonment simply because in that case you always have a chance to take it back and make restitution to the person you have wronged, should that person prove to be innocent.

If you know a way to "take back" the years of life you've taken from someone, let me know. As far as I know, once those years are gone, they're gone. You may be able to let someone out of jail and/or pay him money, but that in no way "takes back" the punishment.

Lori Heine said...

When Scalia bloviates about his own religious views and offers a window into how they lead him to interpret the law, he is NOT merely "deciding what the Constitution" requires." He is telling the people who pay his salary (and whom he supposedly serves, rather than rules, according to that same Constitution) what he is made of.
Whether we think him good or ill, we have every right to our own opinions of how he reaches the decisions that affect our lives.

The opinion of many who post here seems to be that Supreme Court justices are exalted beings who must be judged not on their merits as mere mortals like the rest of us (who are accountable to our Maker whether we like it or not) but as superhumans who need only interpret the Constitution and hand down their lofty verdict to the grovelling peasants below.

"Wow," we marvel, "did you hear the wisdom in that decision?" Americans used to be known for a certain feisty independence of spirit. Now the generally-accepted qualifications for being a good American are identical to those of being a good sheep.

When I comment here, I comment as an American citizen secondarily, and as a Christian primarily. Which means that if I believe a Supreme Court justice who pops off about his "Christian" views is full of hot air, I will say so. I know his decisions have not all been bad, and the principles upon which he claims to build his life are the same as those upon which I have built mine. But as believers in my faith are called to hold one another accountable before God, I have not only the right but the duty to comment when he expresses an opinion that is a disgrace to the teachings of my faith.

This is where I'm coming from in the remarks that I have made here. I refuse to "ooooh" and "aaaah" over comments I find asinine (especially in the context of supposed Christian belief). I don't care how many occasional flashes of judicial brilliance may be produced by the mind that generated them.

If Scalia genuinely believes that the Constitution requires him to make decisions contrary to the dictates of his faith, then his top priority is not God, but Caesar. If his theology is so crapulous that he believes in giving people the bum's rush to execution even though new evidence has come to light in the case, then his Christianity is a very sick and vicious joke.

This is the same man who thinks that "sodomy" ought to be prosecuted. What a strange and very stupid world we live in!

Revenant said...

Now the generally-accepted qualifications for being a good American are identical to those of being a good sheep.

Wow, that takes me back. I haven't heard the "all the people who disagree with me are a bunch of easily-led sheep" argument since college.

If his theology is so crapulous that he believes in giving people the bum's rush to execution even though new evidence has come to light in the case

Just imagine how many trials it would take to convict even a middle-class person of murder. If your first trial doesn't go well, hey, throw a few thousand bucks at somebody to come forward as a "new eyewitness" to your innocence. Bingo, instant retrial. Repeat as necessary until you get lucky on the jury selection and are found not-guilty or until you run out of money. After all, the state has to win EVERY trial -- you only have to win one.

Rainsborough said...

I don't know if across the sweep of history religion has done more good or harm. It's done a lot of both, I assume, like most human institutions.
But I'm afraid that Scalia's logic is unimpeachable. If when we die we go onto another world where we live forever, why then the few decades we spend here on earth clothed in our fleshly bodies really don't matter all that much, except as they determine our fate in the much longer run. Hence the surcease of that life is a question of timing, and is as he says not a big deal. On his view, murder as we secularlists understand it is impossible.
(So also, the certitude of Scalia's religious convictions as to certain imperatives may oblige him in some cases to put aside secular law.)
Similarly, Pat Robertson's logic is unimpeachable. The God of his Bible does intervene in human affairs, rather often in ways that seem morally grotesque. Why should it not be that that Bible gives clues as to similar interventions nowadays?
Scalia's and Robertson's religions provide clear evidence that religion can be harmful, can be employed to justify otherwise repellent conclusions. But given their premises, their logic is impeccable. And informative as to the worth of the premises.

Revenant said...

But given their premises, their logic is impeccable.

How so? For example, you cite the belief in divine intervention as a premise from which Pat Robertson's claims of divine intervenion logically follow. But everybody familiar with basic logic knows that "some X are Y" and "Z is a Y" does not imply that Z is, or even might be, an X. I.e., just because god supposedly intervenes doesn't mean that any given event logically might be divine intervention.

Similarly, it doesn't logically follow from the tenets of Christianity that life on Earth is of trivial importance. Life on Earth determines the kind of afterlife you get, and it is a tenet of Christianity that nobody knows in advance what their fate in the afterlife will be. Killing a person could mean sending a deserving soul to heaven, but it could also mean sending someone to hell who *would* have repented had he had his remaining years to do so.

And informative as to the worth of the premises.

"There exists a god who intervenes in human affairs" and "there is an afterlife we go to when we die" are premises that have truth values independent of the conclusions that follow from them. "If there was an afterlife, the moral implications would suck" in no way implies the non-existance of an afterlife. After all, maybe the world really does just suck.

Lori Heine said...

Getting back to Cathy's posting on this subject, Scalia is a scary guy. Of course there has to be some point beyond which a person cannot be retried, or else we'd have people getting endless new trials. But what Cathy was talking about was the fact that Scalia's religious beliefs seem to have led him to the monstrous opinion that somebody on death row deserves no chance to clear himself, EVEN WHEN COMPELLING EVIDENCE EXISTS. Hello -- are we going to blithely blind ourselves to the implications of this?

People who ally themselves with the Religious Right are accustomed to being taken seriously as people of faith, even when, like Scalia, they are hypocrites and total buffoons. The only folks who are bigger buffoons are those who believe that the Scalias of this world are genuine Christians. Finally, those of us who claim the Christian faith and who are tired of being lumped together with pigs like Scalia are standing up and holding them accountable. This seems to be a big surprise not only to phoney-baloney, "culture war" Christians but also to those who reject religious belief and try to blame people like Scalia for it.

Just once, I would like to see a self-avowed atheist stand up and admit that he or she made the choice to reject belief in God willingly -- and with eyes wide open -- without trying to scapegoat religious people for it. We who are religious are certainly a long way from being perfect. But even the Scalias of this world are not responsible for the choices others make about God.

There are a whole lot of so-called Christians out there who are actively trying to ruin my life. They are so spiritually sick that they would rather see me in Hell than in church. Even that is not enough to make me reject a relationship with God. As a lesbian, I hear "poor me" from others in my community all the time. But those who don't like what's going on in the Church right now, be they gay or straight, might be more constructive if they pitched in and help change things for the better.

Scalia isn't God's fault. The fault is nobody's but his own.

Revenant said...

But what Cathy was talking about was the fact that Scalia's religious beliefs seem to have led him to the monstrous opinion that somebody on death row deserves no chance to clear himself, EVEN WHEN COMPELLING EVIDENCE EXISTS.

That is not correct. Scalia found that the new evidence *wasn't* compelling (the same opinion the appeals court had reached.) His argument was that a new trial wasn't called for because it hadn't been demonstrated that the new verdict would probably be different (i.e., because the new evidence wasn't sufficiently compelling).

Just once, I would like to see a self-avowed atheist stand up and admit that he or she made the choice to reject belief in God willingly -- and with eyes wide open -- without trying to scapegoat religious people for it

Most atheists are atheists because the idea of God is irrelevant to us, not because we're cranky about Christian right-wingers. Your Christianity may be less intrusive than Scalia's, but it doesn't actually make any more sense than Scalia's. Its like a debate over whether to sacrifice live animals to the sky gods or just burn some incense. The latter's nicer, but neither's important.

They are so spiritually sick that they would rather see me in Hell than in church.

With all due respect, you have to torture the language of the New Testament pretty severely for homosexuality to be compatable with Christianity. Christians who view you as an unrepentant sinner are on solid theological ground.

Lori Heine said...

My theory is once again being proven correct! Atheists and fundamentalists are twins under the skin. Their thinking is far more similar than it is different.

I'm sure this will come as a shock to many people, but a growing number of churches are welcoming gay and lesbian worshipers without expecting us to stay celibate or be "cured." I've a feeling many atheists are as unhappy about this as the fundies are. Things have to be black and white to people like these, and shades of gray are just not acceptable to them.

Jesus never uttered one word against homosexuality. If you greatly desire to remain ignorant, then I'd be the last one to stop you. If you care to learn how wrong anti-gay "Christians" really are, you might want to check out Whosoever.org, or any of the fine books Whosoever recommends.

Ignorance is anything but blissful. Ignorance kills.

As untidy and inconvenient as it may be to some people, gay Christians do exist. As do very progressive-minded straight ones. If religion doesn't make sense to you, that's fine. But it doesn't hurt to see the world in all its glorious colors, instead of the monochromatic (and crashingly boring) picture of it shared by so many fundamentalists and atheists.

I'm sure Cathy would say that this is not the place for a debate about this, and as it's her blog, she'd be right. But as my ministry involves picking up the messes of people who smugly assert that homophobic bigots who hide behind the Book of Leviticus stand on solid ground, I can't merely let remarks of that sort go unchallenged.

Revenant, there truly are ALL SORTS of people in the world. Just chalk me up as one of the wackies and you'll feel fine.

Revenant said...

I'm sure this will come as a shock to many people, but a growing number of churches are welcoming gay and lesbian worshipers without expecting us to stay celibate or be "cured."

I'm not sure why that would come as a shock to anyone. There hasn't been a "Christian" faith in the history of the world that hasn't cheerfully ignored those parts of the Bible it was uncomfortable with. That's what makes the whole debate over who the "true Christians" are so amusing to nonbelievers. Increasing numbers of churches are accepting homosexuals simply because increasing numbers of *people* accept homosexuals, and churches are made of people -- and, as they always have, churches find a way to rationalize that whatever their congregations already believe is the Christian thing to believe. But an impartial observer can't come away from a reading of the Bible with any impression other than that God is a prude and a homophobe.

Jesus never uttered one word against homosexuality

Jesus was God, and God said that homosexuals should be killed. So, yes, Jesus (albeit in another form) did indeed speak against homosexuals. Now, later on he spoke against stoning -- but he never said that stoning people was wrong, only that HUMANS weren't worthy of doing it. Adultery, for example, remained a sin, but punishment for it was left in God's hands.

But all this is pointless. Obviously you can concoct Robertson-esque rationalizations for why, if you scrupulously pay attention only to those parts of the Bible which support your point, you're in the right and your enemies are in the wrong. Christians have been doing that for two thousand years. What I don't see is why you expect to impress anyone with it, or why you expect to convert anyone by standing on a soapbox and loudly condemning the faith of everyone who disagrees with you.

Revenant, there truly are ALL SORTS of people in the world. Just chalk me up as one of the wackies and you'll feel fine.

I don't think you're "a wacky". The idea that homosexuality and Christianity are compatable isn't strange to me; most of my family (who unlike me are Christians) feel that way. You're like most Christians -- you believe yourself to be a good person, and thus read the Bible in that context. I don't find it at all strange that a gay person would truly want to believe that the faith they love loves them back. But just because I can identify with wanting something to be true doesn't mean I have to respect people who claim it definitely IS true when it so clearly isn't.

A rational reading of the Bible by a non-homophobic, non-biased individual doesn't lead to the conclusion that God is ok with gays. It leads to the conclusion that God, if he exists, is not a good person.

William R. Barker said...

Lori Heine wrote:

I know the man treats gays as if we're subhuman.

===============================

Now, Lori... don't you think you're going a bit overboard? Can you cite some examples of Justice Scalia treating gays as "subhuman?"

================================

Lori continued:

I don't know whether YOU are a constitutional scholar...

================================

Only in the sense that I can and do actually READ the document on occasion. (*SMILE*) I also actually READ cases I comment on. My academic background is mainly international affairs, world history, and political science. My academic background and interests serve to provide context to my beliefs. I'm not a lawyer nor have I ever attended law school.

===============================

Lori continued:

...or just a comfortable and complacent straight guy...

===============================

Wow... pegging me based on what my sexual orientation may or may not be. How "tolerant" of you. (*SMIRK*) I'm straight if that info helps you form pre-conceived views. (*SMIRK*) Hmm... maybe to assauge your fears I should take this opportunity to declare that I don't consider homosexuals to be "subhuman." (*SMIRK*) Actually... if you wanna know... I "found" Cathy via Andrew Sullivan. (*SMILE*)

===============================

Lori continued:

Rhetoric alone has consequences, totally apart from anything enacted under the law. Ask Matthew Shepard. And no, I doubt that Scalia had anything to do with the kid's getting crucified on a barbed-wire fence in Wyoming. But the net effect of ALL the anti-gay rhetoric out there, from everybody who contributes to it, is indeed an influence.

================================

But as I originally asked... how familiar are you with the writings of Justice Scalia? How many of his books have you read? How many of his opinions have you read? What exactly do you base your insulting contention that Scalia considers homosexuals "subhuman" on?

I'm not gonna bother reposting your comments word for word, paragraph by paragraph, but I've gotta be honest... basically you're babbling.

================================

Lori continued:

Maybe you can make me look ignorant by regarding me with condescension.

=================================

My intention is not to make you look ignorant. I'm trying to have a rational discussion with you. I'm sorry if you feel I'm being "condescending" by inquiring into the depth of your knowledge on a subject you've chimmed in on, but frankly, I think the phrase you're looking for is "reasonable" rather than "condescending." Every statement I've typed and question I've asked has been reasonable, Lori.

================================

Lori concluded:

Or maybe you know less than you think you do, yourself.

================================

Quite probable, Lori. (*GRIN*) That of course has nothing to do with our discussion. (*SMILE*)

BILL

William R. Barker said...

Lori Heine wrote:

Hypocrites... total buffoons...bigger buffoons..

(By the way... how do you get "bigger" than "total?" Oh, well.) (*SMILE*)

Now... back to Lori's post:

...pigs like Scalia...phoney-baloney, "culture war" Christians...

===============================

Wow. Where to begin?

BILL

Lori Heine said...

Well, William says I'm "babbling." Perhaps I am (I prefer to call it "free-associating"). But I have, on occasion, found "babbling" to be productive. My babbles frequently lead to the babbles of others.

It was never my intention to confuse Revenant with a bigot or a homophobe. Unfortunately, he thinks that God is. There are many people smarter than I who disagree with him. I could refer him to some excellent books, or to the web magazine for which I write. If he's not interested, then that's up to him.

Believe it or not, William, I HAVE actually read the Constitution. I keep a dog-eared copy of it beside my bed, and I refer to it often (lately, ESPECIALLY often). What I know about Justice Scalia, I must confess I have gotten from the media. Including the gay and lesbian media, whose attitude toward him is something less than favorable. Perhaps when I do read his decisions, I will be overcome with new admiration for him -- though I rather doubt it.

Again, Revenant (is it MISTER Revenant, or can that actually be your first name?), you and I will simply have to agree to disagree as to whether God is gay-friendly. I'm satisfied with the decision I've made, and I can guarantee I've given it more thought, prayer and agonizing than you have.

William, how utterly charming that you found The Y Files via Andrew Sullivan. Good for you -- the Daily Dish is highly educational. And please, PLEASE forgive me for ever having doubted your gay credentials. We don't get to think of them as "credentials" very often, so I will simply leave you to whatever small satisfaction that gives you.

On my own blog, I may babble on for a little while longer. I am very interested in the investment many anti-religious people seem to have in seeing Christianity as as mean-spirited and exclusive as possible. It doesn't make anybody a bad person, but what a lot of anger and hurt one must carry around inside to hold such a grudge. I can't get angry at folks like Revenant; I can only feel sorry for him.

Next, I will learn that Revenant is a HER. If so, again, so sorry.

But please don't give up on ALL religious people. I have found a good many of them to be very kind, welcoming and supportive. Many have taken great risks to see to it that I am welcome in their church. I could look at the nasties and say that THEY are what Christian faith is all about, but I choose not to.

Now excuse me while I go outside, beat my drums to the sky gods, and burn my incense to the little forest pixies.

Revenant said...

It was never my intention to confuse Revenant with a bigot or a homophobe. Unfortunately, he thinks that God is. There are many people smarter than I who disagree with him.

There are many people smarter than you who agree with me, too. Rather a lot more of them, actually, especially when you look at the whole history of your religion. But like I said, Christians have been creatively interpreting the Bible to justify their preexisting beliefs for as long as there's been a Bible to interpret.

Again, Revenant (is it MISTER Revenant, or can that actually be your first name?)

Yes, I'm male.

I'm satisfied with the decision I've made, and I can guarantee I've given it more thought, prayer and agonizing than you have.

With all due respect, the legitimacy of a belief is a function of the quality of the reasoning behind it, not the quantity. But my goal here is not to convince you that God hates you (particularly since I don't think there are any gods anyway), but to discourage you from playing the holier-than-thou card on your fellow Christians, most of whom (whether liberal or conservative) don't agree with your theological reasoning.

I am very interested in the investment many anti-religious people seem to have in seeing Christianity as as mean-spirited and exclusive as possible.

The problem is that you're a biased observer. You love Christianity, and therefore cannot comprehend why other people might see nasty flaws in it (much as people have difficulty seeing the nasty personality flaws of the people they love). I have no biases either way. It makes no difference to me if the Biblical god loves gay people or hates them, since I don't think he even exists in the first place. I have no dog in this fight.

It doesn't make anybody a bad person, but what a lot of anger and hurt one must carry around inside to hold such a grudge. I can't get angry at folks like Revenant; I can only feel sorry for him.

What a strange thing to believe about me -- especially since the person in this thread who has devoted the most time to bitterly attacking the beliefs of the majority of the world's Christians is none other than you yourself. I suspect you're engaging in a bit of projection, here. I'm not bitter about what the Bible says -- I have no reason to be.

Lori Heine said...

Thank you, Mister Revenant, for your kind words. As for whether there is a rational basis for my beliefs or not, this is hardly the proper forum for going into them. I believe there is, and you do not. Looks like that's where we'll have to leave it.

As to whether you "have no dog in this fight," I must disagree, too. There are certain questions each of us must answer for ourselves, one way or another, and whether or not God exists is one of them. You're right; if you've decided the latter, then whether "He" is a loving Father or a mean bugger (or whether "He" is a "He" at all) will be of no interest. As I answered my primary question in favor of the former conclusion, naturally I chose to pursue the matter further.

But everybody "has a dog in this fight." And it is, indeed, an explosively-emotional issue. Most of the unbelievers I have known are just as explosively-emotional about it as everybody else. I doubt if you yourself would have continued sparring with me this long if your claim to having no emotional stake in the issue were true.

I am going to do what William suggests and enlighten myself about Justice Scalia's rulings. Again, I doubt it's going to move me to a great change of mind. One little thing does interest me, though. William, precisely which of his rulings do you think I'd find most enlightening as to what a stellar jurist he really is? Pray tell me, as your criticism of me implies that you have read them all.

I know I'm being tart, but all sarcasm aside, I'm truly interested. This is the first time I've ever met (online or anywhere else) a gay man who was a big fan of Scalia's. Those must be SOME rulings!

Revenant said...

There are certain questions each of us must answer for ourselves, one way or another, and whether or not God exists is one of them.

That's not really true. A person could easily go his or her entire life without answering that question and not feel like they'd missed anything along the way. We're all born not believing in gods, after all.

You're right; if you've decided the latter, then whether "He" is a loving Father or a mean bugger (or whether "He" is a "He" at all) will be of no interest.

Of course it is of interest to me, it is just that I don't have any reason to prefer one answer to the other. Christian theology is still relevant to me if for no other reason than that Christians believe in it and there are rather a lot of them around.

William R. Barker said...

Dear Lori,

Whether you and I agree or disagree on any particular issue, for what it's worth I find your posts on various threads (including this one) to be well worth reading, considering, and on occasion criticizing. (*WINK*)

Same goes for Revenant!

Same goes for Cathy and the vast majority of the folks who regularly take part in Y Files discussions.

Obviously your sexual orientation is a key SURFACE component of "who you are." That's cool. I "get" it. Perhaps I wear my "straightness" on my sleeve too, but without really being aware of it or - due to the fact that I'm part of the hetrosexual majority - it's not often articulated or thought of as an issue. It just... is.

On another thread (I forget which one, but it's a more recent one than this) I posted some thoughts on gay marriage that I hope you stumble upon and comment on.

I'm not looking for applause or congratulation for my "tolerance," rather, I'm simply interested in sharing thoughts and opinions with other intelligent and interested (and interestING) folks.

(*SMILE*)

I will admit, however, that I do point to my "non-doctrinaire" and frankly heretical views (from the aspect of many of those you'd consider "religious right" or "hard right") coming as they do out of the mouth (or typed by the fingers as the case may be!) of someone (me!) self-identified and often (on most policy issues) described by others as a "right-wing" Republican.

I guess what I'm getting at is that "right/left" labels don't alway accurately predict where a person is coming from or where he or she will come down on a particular question.

I also freely admit.. I do pride myself on being open-minded and well informed and I strive to base my opinions on a clear (to me) and logical (to me) consistancy (as much as possible!) of values.

In terms of this thread, my main contention about judges like Scalia, Thomas, Alito and others who I believe strive to follow the Constitution as they believe it was intended to be followed are honorable judges and sometimes... sometimes... being an "originalist" or believer in the doctrine of "original intent" means pissing people off who don't agree with the RESULT of a particular ruling.

What I'm getting at is that I believe it's really, really important to respect judges who place fealty to the Constitution above their personal policy preference.

Of course you can make an argument that Scalia, Thomas and Alito don't always do this... but in the abstract isn't that sort of "justice" the kind we want to support in order to support the rule of law and the primacy of the democratic process as long as the results of that process don't violate the Constitution?

That's what I want.

Anyway... it's late. Nice chatting with you, Lori.

BILL

Lori Heine said...

Bill, I actually agree with you about the importance of Justices honoring the Constitution and not interjecting their own, petty biases into their rulings. Although I have never read more than a couple of Scalia's rulings (and then in abridged form), I can't speak very authoritatively about how he does on that. But his reputation on that score is a pretty good one.

I guess my problem is with some of the things he is quoted as having said, and the opinions he is credited as having. Media distortion may be affecting my judgment -- and again, if so, I acknowledge my limitation there. I obviously have a problem with anyone who seems to believe that it's okay for the police to batter down my door at midnight and drag me and my partner off to jail because we're both of the same sex. If Scalia really HASN'T expressed the opinion that this is okay, then somebody please (in a manner of speaking) straighten me out.

Bill and Revenant, I appreciate the chance to exchange ideas with you both. I'm recommending The Y Files to everybody I can think of -- even to folks who didn't previously know what a blog is. Some of the most stimulating writing -- both on Cathy's part, and on that of many of those posting comments -- can be found here.

Cathy Young said...

Lori, I think what Scalia said in his ruling is that there is nothing in the Constitution to say or infer that a state cannot pass laws against same-sex relations.

There are legitimate differences of opinion on that, I think.

However, what troubles me is that if you read Scalia's opinion (I'll be happy to provide the link if you want), it's pretty clear that he thinks it's not just constitutional but perfectly ok for states to pass such laws.

Clarence Thomas also dissented from the Lawrence majority on constitutional grounds, but unlike Scalia he specifically emphasized in his dissent that he thought the law was stupid and that he would vote to repeal it if he were a Texas legislator.

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