Tuesday, February 26, 2013
Back in December, I wrote a couple of posts about "Psychic Sophie," -- Part I and Part II -- the "spiritual counselor" who was classified as a "fortune-teller" by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement. Psychic Sophie's free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.
Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today. From Kevin's post about the opinion:
With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”
From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”
The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer "guidance," as the court says, but its guidance is not definitive -- and I don't mean that in the least as a criticism of Yoder). Judge Arlin Adams's Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit's approach is quite different (different times).
One final note. Writing for the panel here, Judge Duncan said this: "Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten 'the very concept of ordered liberty.' Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she 'pretty much goes with [her] inner flow, and that seems to work best.'" But, taking care not to "belittle" Psychic Sophie's beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.
Perhaps the "Eisenhower principle" has its limits.
Michael P. has called our attention to some suggestions from E.J. Dionne and Elmore Leonard regarding the question who should be the next pope. (Why Elmore Leonard missed the obvious choice --
Raylan Givens -- is a mystery to me.)
A funny video making the rounds, from "Lutheran Satire", might enrich the conversation further.
It is reported in the NYT this morning (here) that "Republicans Sign Brief in Support of Gay Marriage". One of those Republicans is former Utah governor--and also former, and possibly future, presidential candidate--Jon Huntsman. In an article published just last week in The American Conservative (here), Governor Huntsman wrote:
"While serving as governor of Utah, I pushed for civil unions and
expanded reciprocal benefits for gay citizens. I did so not because of
political pressure—indeed, at the time 70 percent of Utahns were
opposed—but because as governor my role was to work for everybody, even
those who didn’t have access to a powerful lobby. Civil unions, I
believed, were a practical step that would bring all citizens more fully
into the fabric of a state they already were—and always had been—a part
of.
That was four years ago. Today we have an opportunity to do more:
conservatives should start to lead again and push their states to join
the nine others that allow all their citizens to marry. I’ve been
married for 29 years. My marriage has been the greatest joy of my life.
There is nothing conservative about denying other Americans the ability
to forge that same relationship with the person they love.
All Americans should be treated equally by the law, whether they
marry in a church, another religious institution, or a town hall. This
does not mean that any religious group would be forced by the state to
recognize relationships that run counter to their conscience. Civil
equality is compatible with, and indeed promotes, freedom of conscience.
Marriage is not an issue that people rationalize through the abstract
lens of the law; rather it is something understood emotionally through
one’s own experience with family, neighbors, and friends. The party of
Lincoln should stand with our best tradition of equality and support
full civil marriage for all Americans."
Monday, February 25, 2013
Raised in Blackwell, Oklahoma, Fr. Ashley attended the University of Chicago where he studied the great books under Mortimer Adler and Robert Maynard Hutchins; studied literature under Thornton Wilder; and studied grammar under Gertrude Stein. In Cloth Bound: How the Great Books seminar turned a radical poet into a philosopher and priest, the biographer says: "Stein liked Ashley’s poetry and encouraged him to write more. As for the verse novel he had written in high school, she told Wilder that she enjoyed it but advised Ashley to 'leave out the fleshy stuff.'"
As for his conversion:
Chicago had exposed him to religion in its many varieties; in the beginning of his first year, his close Jewish friend had taken him to Yom Kippur services at a synagogue, and a Catholic friend occasionally brought him to mass. But it was only after reading Aquinas that he found an intellectual challenge to his Marxism and atheism. “I was gradually convinced by my own reflections that Aquinas had provided a better case for theism than Marx or Darwin had provided against it,” he says. Then faith entered: as he recovered with difficulty from an appendectomy at the University of Chicago Hospitals in 1937, he started to pray. ...
Ashley started studying Catholicism in River Forest with a priest of the Dominican Order, the same order Aquinas belonged to. He attended daily mass at St. Thomas the Apostle church in Hyde Park and in 1938 was baptized. “The Socialist Workers’ Party expelled me as a scandal,” he recalls, “and I was forced to rethink my Marxism.” He still sympathized with the movement’s call to equality and social justice, but its dogmas and party commitments were incompatible with his new religious path. Ashley transferred to the University of Notre Dame to finish his studies; in 1941, he took vows as a Dominican, adopted the name Benedict, and commenced studies to become a priest.
Although I never met Fr. Ashley, I am grateful for our correspondence and for his contribution to Recovering Self-Evident-Truths: Catholic Perspectives on American Law. His chapter is titled "A Philosphical Anthropology of the Human Person: Can We Know the Nature of Human Persons?"
