Previous month:
May 2013
Next month:
July 2013

June 2013

Doctrine of Discovery

One of the resolutions before the 29th General Synod of the UCC is to repudiate the Doctrine of Discovery.  The resolutions describes the Doctrine:

In 1095, at the beginning of the Crusades, Pope Urban II issued an edict – the Papal Bull Terra 
Nullius (meaning empty land). It gave the kings and princes of Europe the right to "discover" or
claim land in non-Christian areas. This policy was extended in 1452 when Pope Nicholas V
issued the bull Romanus Pontifex, declaring war against all non-Christians throughout the world
and authorizing the conquest of their nations and territories.

This doctrine was used by Protestant nations and churches as well and has even entered in US law and how it has treated Native peoples.

I often feel the paradox of being proud of the pioneer heritage of our congregation and its implications for Native peoples.  Given our denomination's historic role in colonizing the country, the discussion should be interesting.

The resolution also calls for us to support reparations.


Scalia's dissent on merits

I've discussed his opinion on jurisdiction in the post below.

Unlike the Chief, he is not convinced that this is solely a case about sovereign state power and not equal rights of individuals.  He, like myself, found the majority opinion quite confusing.  It has vaulted language about individual rights, but then uses other factors in making its decisions.  He assumes, rightly surely, that this leaves open the possibility for the Court to next overturn state bans.

Scalia writes:

The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to aman and a woman are reviewed for more than mere rationality. That is the issue that divided the parties andthe court below, As nearly as I can tell, the Court agrees with that; its opinion does not applystrict scrutiny, and its central propositions are taken fromrational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “‘must be upheld . . . if there is any reason- ably conceivable state of facts’” that could justify it).

This may be the most confusing aspect of the opinion, that it doesn't decide the standard of review for cases involving sexual orientation.  Many of us had hoped for strict scrutiny, which would have helped with a range of other issues.  

I enjoy his humour here:

Some might conclude that this loaf could have used awhile longer in the oven. But that would be wrong; it isalready overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-dueprocess grounds, and perhaps with some amorphous federalism component playing a role) because it is motivatedby a “‘bare . . . desire to harm’” couples in same-sex marriages.

Scalia raises the spectre (and right he is) that this ruling will muddy the waters:

To choose just one of these defenders’ arguments,DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Fed- eral Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing aState’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision. . . . State and lower federal courts should take the Court at its word and distinguish away.

And this, which while Scalia holds  a different view of the fundamental issue than I do, I agree with his critique of the ruling:

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’smoral judgment in favor of same-sex marriage is to theCongress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’sholding is its sense of what it can get away with.

Scalia pretty much wonders why they didn't go all the way, since it is clear that they plan to:

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” whichstate legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dig- nity” in the first place. Ante, at 26. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

These words are quite powerful:

Some will rejoice intoday’s decision, and some will despair at it; that is thenature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winnersof an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

Jurisdiction in Windsor

I found Justice Kennedy's statements here on the jurisdiction question to be convincing:

The Court’s conclusion that this petition may be heard on the merits does not imply that no difficulties wouldensue if this were a common practice in ordinary cases. The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a proceduraldilemma. On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the UnitedStates to pay money. On the other hand, if the Execu-tive’s agreement with a plaintiff that a law is unconsti- tutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim wouldbecome only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is.’” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment tobe able to nullify Congress’ enactment solely on its owninitiative and without any determination from the Court.


Now reading Scalia's dissent on this point, I am less convinced by Kennedy's line of argument.  It is not clear to me that there was jurisdiction, and Scalia is right in contending that SCOTUS does not pass judgement on abstract issues but only on the actual cases.  The administration's handling f this case has been odd for some time -- agreeing on the Constitutional point with Windsor, but not giving her her refund.  The administration's behaviour raised its own Constitutional concerns.

From Scalia's dissent:

It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is en- forcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitution- ality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act(and thus gave Windsor standing to sue) even though hebelieved it unconstitutional. He could have equally chosen(more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitu- tional, see Presidential Authority to Decline to Execute Un- constitutional Statutes, 18 Op. Off. Legal Counsel 199(Nov. 2, 1994)—in which event Windsor would not havebeen injured, the District Court could not have refereedthis friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to atug of war between the President and the Congress, whichhas innumerable means (up to and including impeachment) of compelling the President to enforce the laws ithas written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.

And this:

There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desireto place this Court at the center of the Nation’s life.

Scalia is also sharply critical of Justice Alito's theory of jurisdiction.  I liked this paragraph in that section:

To be sure, if Congress cannot invoke our authority inthe way that JUSTICE ALITO proposes, then its only recourse is to confront the President directly. Unimaginableevil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough aboutthe matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination offunding. (Nothing says “enforce the Act” quite like “. . . oryou will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyersto ask us to do so. Placing the Constitution’s entirelyanticipated political arm wrestling into permanent judicialreceivership does not do the system a favor. And by theway, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did notfaithfully implement Congress’s statute, what then? OnlyCongress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.

I do find this insistence on letting the political process play out to be in direct contradiction with the 5-4 decision in Bush v. Gore (not the 7-2 ruling) which basically asserted the Court's power of primacy into an area with explicit Constitutional provisions for being settled by the U. S. House of Representatives.

Restless Drive

Restless Drive

I Kings 21:1-21a

by the Rev. Dr. E. Scott Jones

First Central Congregational UCC

23 June 2013



    Over the last few weeks the church staff has been working on our website redesign. We hope to launch the newly designed site around Labor Day and the kickoff of the new church program year. One of the projects of the last few weeks has been writing the text which will appear on the website. I've enjoyed finding just the right words and phrases to describe who we are and what we do.

    One page we have overhauled is the one about the church's history. We decided that what we did have was rather institutional and dry, so we have restructured it around telling the stories of people who have been part of this church. We believe this will appeal more to people wanting to learn about us. Over time we'd also like to record some of you sharing stories about the church and your faith journeys, and then we could embed those videos on the site.

    So, in the latest draft, here's how we introduce our stories:


Everyone in our congregation follows a unique spiritual journey. We open ourselves to conversation with one another, so that we can learn from different perspectives. Everyone has a story to share.


That tradition has kept us inclusive, inquisitive, progressive, and dynamic throughout our 157 years.


We may be the oldest, continuously worshipping Protestant church in Omaha, but we have never stopped evolving. Our founding pioneer spirit has never left us. Here are some highlights of our stories.


    It then goes on to talk about Reuben Gaylord and Dr. George Miller, the Standing Bear Case, the German immigrants who founded two of our predecessor churches, Lena McGilton's work on women's suffrage, Walter Judd's medical missionary work in China, and more. The emphasis is that this congregation has always explored big questions and engaged the important issues. We continue to live out our founding pioneer spirit, as expressed in our church covenant:


We are thankful for life, for Jesus our Lord, for the courage and vision of our church founders. In gratitude, we covenant with God and with one another, seeking as a church and as individuals to be faithful to God's will. We pray for hearts that open, minds that understand, and lives that serve.


    This week, while preparing my sermon, I zeroed in on the phrase "Seeking as a church and as individuals to be faithful to God's will." How do we do that?


    Well, Naboth had a vineyard. Ahab wanted it. We don't know anything about Naboth other than this. He had a vineyard in Jezreel near the second palace of King Ahab and that vineyard was on the land of his ancestors.

    According to the story, when the Israelites settled in Canaan, the land was distributed. For these former slaves, land was significant; it meant opportunity and freedom. We understand this. Think about what land meant to our pioneer ancestors. Think about what it meant to those GI's who returned from World War II and used their GI Bill to buy a home. Think about how you felt the first time you had your own place. The day I bought my first house I ran around all excited that everything in it was mine. This was my living room, my kitchen, my toilet!

Land and property mean opportunity -- the same for us as for the ancient Israelites.

These slaves had worked the land of others, now they had their own to work. A person is genuinely free only when she or he has more possibilities from which to choose. Property, then, was important to the ancient Hebrews and was protected by law and custom. It was central to their identity as a people, to their relationships with one another, and to their covenant relationship with God.

    There are a lot of bad things we can justifiably say about King Ahab, but one good thing is clear in this story -- he does respect the rights of Naboth. According to the covenant law of the Hebrews, the king is not above the law. Naboth has the right to say "no;" he can refuse the king his land.

    But, we all know, that rules are often exploited by those with the power to do so. They find loopholes or pull subtle legal shenanigans. Sometimes they even have the power to break them outright. Jezebel has that power, so she concocts her plan of intrigue and murder.

    God, however, does not let this injustice pass without notice. God sends his prophet Elijah to condemn the king and queen and pronounce God's judgment upon them. The powerful Southern Baptist preacher R. G. Lee preached his most famous sermon, "Pay-Day Someday," on this story. He evocatively describes the encounter of Ahab and Elijah:


As Ahab goes walking through the rows of vines, he begins to plan how he will have that vineyard arranged by his royal gardener, how flowers will be here and vegetables yonder and herbs there. As he converses with himself, suddenly a shadow falls across his path. Quick as a flash Ahab whirls on his heels, and there, before him, stands Elijah, prophet of the living God. Elijah's cheeks are swarthy; his eye is keen and piercing; like coals of fire, his eyes burn with righteous indignation in their sockets; his bosom heaves; his head is held high. His only weapon is a staff: his only robe a sheepskin, and a leather girdle about his loins. Like an apparition from the other world, like Banquo's ghost at Macbeth's feast, Elijah, with suddenness terrifying, stands before Ahab. Ahab had not seen Elijah for five years. Ahab thought Elijah had been cowed and silenced by Jezebel, but now the prophet confronts him with his death-warrant from the Lord God Almighty.


To Ahab there is an eternity of agony in the few moments they stand thus, face to face, eye to eye, soul to soul! His voice is hoarse, like the cry of a hunted animal. He trembles like a hunted stag before the mouths of fierce hounds. Suddenly his face goes white. His lips quiver. He had gone to take possession of a vineyard, coveted for a garden of herbs; and there he is face to face with righteousness, face to face with honor, face to face with judgment. The vineyard, with the sun shining upon it now, is as black as if it were part of the midnight which has gathered in judgment. Like Poe's raven "his soul from out that shadow shall be lifted—nevermore."


"And Ahab said to Elijah, Hast thou found me, O mine enemy?" (I Kings 21:20) and Elijah, without a tremor in his voice, his eyes burning their way into Ahab's guilty soul, answered: "I have found thee: because thou hast sold thyself to work evil in the sight of the Lord."


    Ahab has sold his soul, violating God's original plan for God's people. Sam Wells wrote, "justice unravels when we lose sight of who we are in relation to God." The great crime here is not simply that Ahab and Jezebel have broken the rules, they've broken relationships with God, other people, and creation. They sold themselves to other ideas, and now judgment is coming due.

    We often imagine Justice as a blindfolded Greek goddess holding scales and a sword. The scales represent balancing two sides of an argument. The sword represents not only power, but precision. According to this Greek model, justice is something we arrive at through reason and order.

    But the Hebrew image of justice is not the same as the Greek. God's justice is not blind nor is it about reason and order. The Greek conception of justice is based upon a fiction. It assumes that everyone can equally come into the courts and make their case and that, free from bias, the courts will hear and rule. The Hebrew prophets understood this to be false. The prophets knew that there are people who have been denied freedom and opportunity. That there are people who cannot come and state their case. That courts are not free of bias.

So God's justice is biased. It is biased in favour of the oppressed, of the victims, of the poor. Of the brokenhearted, the meek, the persecuted. Because God's justice is about people and relationships. It is about compassion. About hearing the cries of people and responding. About doing everything within one's power to bless people with a better life. It is, as the prophet Amos proclaimed, a raging river that forces all obstacles out of the way:


    Let justice roll down like waters,

    And righteousness like a mighty stream.


The great Rabbi Abraham Joshua Heschel described this image, which is so very different from the blind goddess balancing her scales:


[It is] a surging movement, a life-bringing substance, a dominant power.

A mighty stream, expressive of the vehemence of a never-ending, surging, fighting movement -- as if obstacles had to be washed away for justice to be done. . . . . Justice is not a mere norm, but a fighting challenge, a restless drive.

. . . what is required is a power that will strike and change, heal and restore, like a mighty stream bringing life to the parched land. . . . it is God's power in the world. . . . What ought to be, shall be!


    Ahab's problem was that he sold himself to a worldview different from this, one that violated God's will. So, how are we to be faithful to God's will, as our church covenant proclaims?

    Instead of selling out, we must embody God's restless drive. Be like the prophet and not the king. Open our hearts and truly care for others. Believe in what ought to be. Advocate, speaking on behalf of those who cannot speak for themselves. Use our creativity and imagination to work for a better world.

    So, let us open ourselves to possibilities. Welcome new ideas. Push the envelope. Never stop evolving. Embrace the pioneer spirit of our founders. Be like the best parts of our story. Never lose sight of our relationship with God. Let us grow. And keep growing. Opening doors wide to where the still speaking God plans to lead us.

    This is the passionate faith which our times require. Let us be faithful to God's will.

Ex-gay movement ending

For years we in the LGBT rights movement have had to contend with the so-called "ex-gay" movement.  Always a token "ex-gay" would show up to testify.  We always knew this was discredited psychology and bad theology, but right wingnuts have latched onto these folk and their harmful arguments.

This week it was all over the web about the closing of Exodus Ministries and the apology it issued for its decades of harm.  Many, including this article which nicely summarizes the collapse of the movement over recent years, are calling this the end of the "ex-gay" movement.

However, I know that plenty of smaller, fringe groups are still out there.  Friends in OKC are organizing against an "ex-gay" conference upcoming there.  Plus all this harmful misinformation is out there and being promoted by ignorant religious leaders and politicians who have for years missed all the news discrediting this movement and will probably miss this latest news.  The bad information and its misuse will continue for many more years (I don't know how often we get confronted in public hearings with some long-discredited study from the 1970's or something, so I know we've still got this to contend with for some time).

But I welcome the news that at least one harmful chapter in this history is coming to a close.

Radicchio harvesting

Thursday Mom arrived and that evening she walked with me down to our garden plot so I could show it off and do some maintenance and harvesting. The little squashes and zucchinis are coming along and the cucumber vines are growing nicely.

I picked a few more scallions.  These have sure been nice.  Tall, firm, crisp, with pretty green color, and delicious flavour.  I've been chopping them up in all sorts of things.

I steamed some of my broccoli for dinner that night and made a kale salad.

While at the garden I finally picked the radicchio head.  Guess I'll have to make a kale and radicchio salad!