Notes

Earlier today, I listened to a voicemail message from another attorney, who should have called me sooner, but waited until after I left my office. The message included excuses: “I have been really busy, I was in the office until eight o’clock last night (I could have called you at home, if you gave me the number), and I haven’t been able to call anyone back—I’m calling from my car right now, so busy am I!” Stuff like that.

And suddenly I remembered Marcus Aurelius:

From Alexander the Platonic, [I learned] not frequently nor without necessity to say to any one, or to write in a letter, that I have no leisure; nor continually to excuse the neglect of duties required by our relation to those with whom we live, by alleging urgent occupations.

That’s still good advice. If you are delayed, just apologize. Don’t make a production.

I finally finished Karen Armstrong’s The Case for God. It was interesting but ultimately disappointing. Here’s a short review that I just posted on LibraryThing and Amazon:

Karen Armstrong makes no case for God and only a weak, uneven, and confused case for “God.” She clearly (and rightly) dismisses theology that treats God as merely the greatest power in existence, but ultimately fails to explain why the word or label “God” remains useful. In the final pages, where I hoped to see her “case” become clear, she only advocates what amounts to active engagement with life, mindfulness, and recognition of uncertainty. Why we need “to engage with a symbol [like "God"] imaginatively [and] become ritually and ethically involved with it” is not clear, except Armstrong claims that doing so will “allow it [the symbol] to effect a profound change in you.” (See page 321.)

Armstrong rightly points out that “God” the symbol too easily becomes God the idol, which is “one of the pitfalls of monotheism” (page 321), so why should we bother putting a label on “religious experience,” which she appears to define as “explor[ing] the normal workings of our minds and notic[ing] how frequently these propel us quite naturally into transcendence” (page 327)? And what is “transcendence” anyway? If putting words on these things creates a dangerous “pitfall,” then Armstrong has fatally undercut her case. To portray her book and her argument as being a “case for God,” she is only irresponsibly perpetuating the problem that she has spilled so much ink to reveal, not just in this book, but in several earlier ones.

It does seem quite “natural” or “normal”—perhaps a better word is “commonplace”—to recognize that we remain ignorant of the true nature of reality, but doing so while actively engaging with life and practicing mindfulness does not require having a label or a symbol like “God.” Or Armstrong, at least, has not convincingly argued that it does, which is what I expected her to do, right from the beginning of the book.

Ultimately (and unfortunately), this book follows what now appears to this reader as a clear progression in her work: writing that increasingly looks less like history, or even history of ideas, and more like roughly chronological bibliography with connective glosses here and there. It is not an argument, but a guided tour through Karen Armstrong’s reading. Taken on those terms, The Case for God is quite an interesting work. But taken on the terms by which it seems to present itself, it is a failure.

After my last post, about Cordoba House, a commenter asked what I thought about St. Nicholas, a Greek Orthodox church that was destroyed in the September 11 attack and has struggled with the Port Authority ever since. But that looks like a fairly ordinary dispute over zoning and land use. The church had some land where their building was destroyed and they could rebuild there if they wanted to. And apparently the Port Authority is going to exercise eminent domain to take ownership of space beneath the church’s land so they can build an underground bomb-screening center. Last year the Port Authority was going to allow them to build a bigger facility on different land, but that deal fell through, so now the church still has its original parcel, a right to rebuild, and the prospect of what looks like a legal taking under eminent domain.

I’m sure it’s frustrating for the church, but I don’t see anything in the story that suggests St. Nicholas is being targeted because it is a Greek Orthodox church; they’re just wrapped up in the same kinds of land use laws that frustrate all urban property owners. Maybe they could gain more traction by invoking the Religious Land Use and Institutionalized Persons Act, but I kind of doubt it, since they could still rebuild their facility as it was before the September 11 attacks, and having a bomb-screening center underground would probably not “substantially burden” their practice.

Marci Hamilton writes today at FindLaw about another recent situation involving a religious group and land use laws:

In Austin, the residentially-zoned district limited buildings to places of residence, so when the Sikhs began by worshipping in a mobile home, there was less cause for concern or for litigation. However, knowing full well the zoning requirements, the group then built a sizable pre-fab house of worship on the same residential lot.

Neighbors complained, because their quiet residential neighborhood was no longer residential in character and they feared their property values would fall. This week, a Texas appellate court held in favor of the neighbors, and ordered that the Sikh temple be removed. The court also remarked, however, that worshippers could continue to pray together in the trailer, because that is consistent with the law.

As has routinely happened in recent cases when a religious group plows straight into neutral, generally-applicable land use laws, the group responded to the decision with charges of “discrimination.” Now, they are taking the position in the media that no court should be able to order them to remove their house of worship once that it has been built. This is a case, though, where there is no evidence of religious discrimination. Rather, in this case, the facts point to a straightforward application of land-use laws that fairly govern every landowner in the neighborhood. Thus, the Constitution simply does not seem to be at issue here.

Cordoba House would not violate land use laws, but is decried on the Right (mostly by Christians and Jews) because of it would be an Islamic facility; the Greek Orthodox Christians at St. Nicholas are frustrated because land use laws prevent them from doing what they want to do, which appears to be more than they did before their church was destroyed; the Sikhs in Austin now claim that their violation of land use laws should be excused because they are a religious group. The common theme is simply that we have “neutral, generally-applicable land use laws” and that religious groups think they should not have to abide by those laws. (In the case of Cordoba House, the people who think they should not have to abide by the laws are not the Muslims, but their largely Judeo-Christian opponents.)

Professor Dorf has written a couple interesting posts this week about the Cordoba House imbroglio.

First, the issue is clearly political, not legal—which is to say that objections can be little more than rhetorical, while arguments about the legality of Cordoba House simply will not fly. So politicians will try to squeeze a lot of mileage out of the issue in their campaigns, even though, if elected, they will still be constrained by the same constitutional limits that defeat any legal arguments against Cordoba House. The professor writes:

[W]hen President Obama seemed to back off of his initial strong defense of the Islamic center, he was making a fair point: Much of the opposition to the Islamic Center—including by [Sarah] Palin—did seem to challenge the right to build it and not just the wisdom of doing so. Thus, defending free exercise was not a non sequitur, given the prior (and to a large extent ongoing) campaign. We end up with a very narrow disagreement: Palin and Obama now agree that the planners have a right to build the Islamic Center where they plan to build it; Palin says they should not exercise their right; Obama says it’s not for him to advise them whether to build it or not. Yet that small difference will undoubtedly be the source of much electioneering and demagoguing between now and November.

Second, even when opponents of Cordoba House come up with ostensibly reasonable objections, a moment of reflection typically reveals them to be animated by the “Christian nation” sentiment that, under the religion clauses in the First Amendment, simply cannot be translated into state acts. For example, there may be an argument that Cordoba House has or will have connections to “radical Islam” or Saudi financing. The professor responds:

[W]hen Newt Gingrich . . . says that . . . Cordoba House should not be permitted because there are no churches or synagogues in Saudi Arabia, he both draws attention to the Saudi connection [i.e., that all but one of the September 11 hijackers came from Saudi Arabia] and shows that he’s not really making the claim that ground zero is not the right place for an Islamic Cultural Center. The logical inference to draw from Gingrich’s invocation of Saudi Arabia’s exclusion of non-Islamic houses of worship is that no mosques should be allowed anywhere in America.

And this gets straight to the reason why we separate religious affairs and legal affairs in the United States. The right to free exercise opens the field for, among other things, civil attempts at persuasion: if members of any religion want to persuade others to join, or call upon their tradition for the rhetorical raw materials going into their participation in the public conversation, they are quite welcome to do so. But they are not guaranteed success and they are not guaranteed control over the laws, no matter how widely-shared their beliefs may be in the general population. And the prohibition on establishment or endorsement of a religious argument by the government means, in a very practical sense, that while persuasion from a religious viewpoint is allowed, government acts must be rooted in a broader consensus, which the Supreme Court expresses as “a secular purpose.” It means that even though many Americans may want to squeeze Islam out of our culture, whether because the perpetrators of the September 11 attacks were Muslims or whether they believe the United States is a “Christian nation” (or both), and they can try to persuade people that their views are correct, the government is not permitted to act on that persuasion unless there is some interest, relevant within the context of maintaining a government, that legitimates such action.

In the case of Cordoba House, there may be a legitimate claim that some Muslims want to destroy America and replace our government with Sharia, which would certainly present a threat to the maintenance of our government. But the geographical location of a Muslim facility, despite what it might mean to those would-be destroyers, is not going to result in the overthrow of our government. We have other means to prevent that, including the enforcement of laws against certain criminal conduct, which allow us to address more specifically which individual Muslims present a threat and which really are the kinder-and-gentler practitioners, devoted to tolerance and mutual understanding between different religious viewpoints. We can also turn to the establishment clause, to the extent more powerful and entrenched religious groups have not already eroded its strength, as a tool to prevent Islamic interference with the operation of our laws. And we, through our government, have a strong interest in enforcing our criminal laws and our constitutional separation of religion and state to maintain our government.

But executing those laws sloppily, and without regard for how disparate treatment will muck up precedents for the future, only weakens our government and our nation. Fortunately, most everyone who has joined the debate over Cordoba House recognizes that our laws provide no comfort to objections. The continuing political firestorm, however, has the potential to further weaken public understanding of the laws. Highly visible public figures getting up and saying, in essence, “We have these laws that prevent us from doing what we want to do, and we will respect that, but those laws are wrong,” deepens the public perception that something is wrong with our Constitution. When the next “crisis” comes, will Sarah Palin and Newt Gingrich and others like them still recognize the constitutional constraints? And when the encroach of Islam finally results in the collapse of our commitment to constitutional restraint in our dealings with Islam and other religions, who will be the winners? Certainly not us.

A while ago I encountered someone who complained that allowing Cordoba House to go forward in Manhattan demonstrates tolerance for Islam, but not for the families of the people who were killed in the September 11 attacks. Here is how I responded:

It’s not “tolerance” or intolerance either way, and I’ll tell that to any family member of any victim. It’s a constitutional right to the free exercise of religion. And if we use Islam as an excuse betray our fundamental values and deny to some the same basic rights to practice religion, assemble, and use their property, simply because they practice the same religion as the hijackers, then the victims of the attack on September 11, 2001, died in vain. Justice Oliver Wendell Holmes, Jr., was right when he wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.

Grief, even when legitimate, is not an entitlement to undermine the law or to deny rights to others. Building a mosque or practicing Islam are not acts of terrorism, nor are they illegal. Condemn Islam, ridicule Muslims, and deride their beliefs—your speech is constitutionally protected. But they have the same right to build their mosque in Manhattan as practitioners of every other religion have a right to build houses of worship on the property they rightfully own. And I will condemn and ridicule them all, even as I defend their right to be: if others can have their rights taken away simply for being offensive, then my rights might be next.

If people engage in illegal or constitutionally unprotected acts like harboring criminals, inciting violence, or providing “material support” to foreign terrorist organizations, then we can punish them. But being Muslim in Manhattan (and having a place to be Muslim in Manhattan) is not a punishable crime or even a violation of the constitution—even though Muslims flew the planes into the World Trade Center, even though there are lots of Muslims who would love to destroy our government and install a theocratic regime under Sharia.

In this country, you get to practice whatever religion you want, no matter how ridiculous others might think it is, no matter how much anybody finds it offensive. Our laws don’t protect people from offense; they protect people from harm. That means, to paraphrase Thomas Jefferson, if it neither picks our pocket nor breaks our leg, you can be as ridiculous and offensive as you want. If you can’t handle that, then you can’t handle the United States of America.

My wife just posted “Anatomy of a Closing Argument,” which is a great example of how attorneys argue a case to a jury. The most interesting parts, in my opinion, relate to that knotty courtroom problem of witness credibility.

The defense attorney started his closing . . . by saying that this was a case about a family misunderstanding, that it was a case of “he said, she said”, and the jurors would have to figure out which version to accept as true.

He said that the defendant admitted to his prior convictions (2 prior felonies, and 4 prior crimes of moral turpitude) and admitted that he lied to the officer when the defendant testified because he was being honest, and because he wants the jury to “experience the truth as he believes it.” . . . He said that his client testified clearly, succinctly, and without hesitation or looking down, which he said also pointed to him telling the truth. And, because the defendant didn’t run when the officer tried to stop him, since running equals show of guilt, that the reverse must be true, that compliance and the immediate yield shows not guilty.

In contrast, he said the victim was at a BBQ drinking beer for 5 hours, had a hard time hearing in court, (so had problems with perception) didn’t want to testify, and apparently knew where the defendant was. He said she had an ulterior motive based on her prior relationship history with the defendant. He said the fact that she didn’t report the vehicle stolen for 3 days showed she was just mad at him for not bringing it back soon enough.

My wife addressed these points in her rebuttal argument, which is available to the side with the burden of proof—in criminal cases, that’s the prosecution, or “the People.”

About the witness’ credibility, I pointed out that there was absolutely no evidence of the victim being impaired in any way that evening. She was at a BBQ and apparently had some beer (a normal activity at a BBQ), but there was no testimony about how many or that she was impaired by that consumption. She also had said she had a hard time hearing in the courtroom, but never said she had a hard time speaking, or remembering, so defense’s comment about her perception being impaired was not appropriate. Addressing the witness’ hesitation in testifying and a possible motive, I reminded the jury that the witness told them she didn’t want to testify against her son, as he was her only child left since the death of her daughter, and no parent wants to do that. She cried and said she just wanted him to be responsible for his actions.

Regarding the defendant’s “immediate compliance” meaning no guilt, I said that those in the jury who had received speeding tickets knew that wasn’t true. (Several had admitted during jury selection that they had received speeding tickets, ones they deserved!) They had all watched COPS before and know that some people run and some people don’t. Running usually means guilty, but stopping doesn’t mean innocence.

I hammered the defense argument that the defendant was being honest when he testified. I said that he was honest about his prior convictions and his lie to the officer because he had no choice, not because he is a fine, honest, upstanding citizen! I told the jury that if someone testifies, prior felonies and crimes of moral turpitude can be used against them, so it is better for him to admit them upfront than to have me spring it on him! And when his credibility was weighed against that of the officer, there was no way he’d win, so he did admit to me on the stand that he lied to the officer, though he danced around before doing so.

In my experience with clients and others not regularly involved in the legal system, witness credibility is the most frequently forgotten (or simply unknown) factor in presenting a case. The common understanding seems to go something like this:

Everybody is required to swear an oath to tell the truth when they testify in court.

I will swear the oath and tell the truth, which means I should win.

If the other side says something different, then they have to present “proof” of what they say, or face the harsh (but unknown) penalty for committing the crime of perjury—because the lawyer will somehow manage to demonstrate on cross-examination that they are lying.

There are a couple big problems with that view, including the tendency to believe that the other side should be held to a higher standard (which, for most laypersons, seems to mean they have to present documents), and the belief that contradictory testimony is magically resolved, TV-style, by eliciting a confession during cross-examination.

First, documents are not required to prove a case; testimony is evidence just like documents can be. If documents are properly authenticated and otherwise admissible, they often do present a more credible source of information than witness testimony, but any admissible evidence, whether testimonial, documentary, or otherwise, can be “proof.” (“Proof” is really a better word for what happens at the end of the process, when a determination is made by the judge or the jury; in the interim, a simple way to understand “evidence” is just as something that tends to make a relevant fact more or less likely to be true. Good evidence, coupled with good argument, will result in proof.)

Second, contradictory testimony in most cases presents a credibility problem, which is rarely resolved by a confession of dishonesty on cross-examination. To the contrary, people walk into courtrooms every day, swear and oath to tell the truth, and then lie, lie, lie—or state untrue facts that are consistent with “the truth as they believe it.” In some cases, it’s possible to confront witnesses with evidence that reveals their dishonesty, but not always; and asking witnesses whether they are telling the truth will almost never yield a confession of dishonesty.

Most of the time, contradictory testimony has to be addressed in the argument stage, the way my wife describes it. One attorney gets up and says that so-and-so is credible (or not) because his testimony was marked by certain characteristics, which the attorney claims are common to truth-telling (or lying). Then the other attorney gets up and says, no, that’s hogwash, and here’s why. That’s what happened in the closing arguments that my wife described. After the argument, the trier of fact—which is the jury if there is one, or the judge in cases without a jury—has to decide which person to believe, which is a credibility determination.

As you can probably imagine, it’s pretty risky to take a case to trial if the whole thing comes down to a credibility determination—what lawyers often call a “he-said, she-said case.” Which is probably where people get that mistaken idea about “proof”; a good case will have many pieces of evidence that fit together like bricks in a wall, so that your trier of fact will have something more to do than just figure out which person is lying. If you just have one witness for your key facts, and the other side only has one witness for their key facts, then somebody is lying and it can be hard for a judge or jury to figure out which one that is. Presenting multiple witnesses with different perspectives and motivations but similar factual testimony helps. Having documents or physical evidence can help sometimes, too. So if your attorney says, “Look, I know you’re telling the truth, but this is a he-said, she-said case and the other party is a really good liar,” then resolving the case outside of court may be a very good idea. Listen to your attorney.

My wife won her case because she had other good evidence and because she did a good job of arguing that her witness was telling the truth and the defendant was a liar. But she had to argue the credibility issue because that is always important in court. After relevance and admissibility, credibility is the most important part of witness testimony; even if the witnesses is giving admissible testimony on a relevant issue, if the trier of fact determines that he or she is not credible, that testimony will not be helpful. And, as you can see from my wife’s description of the closing arguments in her case, the credibility problem reflects an issue that most people see every day: Can I trust this person to be telling the truth? The oath doesn’t make the witness credible, the witness does.

Following on the delightfully depressing Onion story that I quoted a few days ago, this morning I read two more pieces about the printed word and the decline of its readers, both of which are worth sharing. (Thank you, Roger Ebert, for tweeting them.)

The first is satirical, about that ephemeral mainstay, the newspaper: “After a Thorough Battery of Tests We Can Now Recommend ‘The Newspaper’ as the Best E-Reader on the Market.”

What concerned us most about The Newspaper was its lack of Wi-Fi. Information on the system was locked, while on other e-readers it was open, ubiquitous and current. Eventually, however, we found this advantage to be overstated, even misleading. Engineers using The Newspaper typically did so 30 to 60 minutes a day. Afterward, they went outside, formed relationships, and took in what life had to offer. Those using Wi-Fi-enabled e-readers tended to stay on the couch, scanning video sites for cats; eventually, downloading recipes for artichoke cheese dip they’ll never use.

But in the modern world of the newspaper, 30 to 60 minutes a day, followed by relationships and taking in what life has to offer, just isn’t enough for the advertisers. They need a constant stream of eyeballs, only nominally attached to brains, to keep the content mixer churning. Just this morning (or should I make it more breathless and say, “Only moments ago”?), the Fresno Bee promised to “ship out a tweet and email alert the moment we get word today on Prop. 8 judge’s ruling on marriage stay.” They’re doing their best to keep what can only charitably be called “readers” on the line, with what can most accurately be called “pre-news.” This is a service? And if, when the momentous ruling comes down, I am too busy doing other things to read that tweet or email alert, I suppose my consciousness of facts barely relevant to my happy existence will have to be delayed. Alas.

None of this is new. Henry David Thoreau said it 150 years ago, when the telegraph was the iPad of the 19th century: “We are in great haste to construct a magnetic telegraph from Maine to Texas; but Maine and Texas, it may be, have nothing important to communicate.”

The second piece is more of a lament on the widely-rumored death of books, “The World’s Most Perfect Product.”

[T]he book—the printed one, wood pulp and ink, glue and sweat and blood—remains a nearly perfect product.

Think about it. It hasn’t been fundamentally improved upon for 1,000 years. Few other products in the world match it for reach and purity of function. It’s cheap, transportable, sharable. It’s immersive, transformative, offers universal and timeless appeal across all nationalities, religions, races, creeds, politics, classes, education levels. No other product you can name matches the book across the efficiency/cost/intimacy/experience matrix. It’s flawless.

So of course, we have to kill it.

I have hundreds of books. They are everywhere I am. When my wife and I go on vacation, I usually have a separate suitcase just for books. A Kindle would be easier to carry, but also easier to lose and easier to break. If we have important things to say, then memorializing them in physical books, with volume and heft seems appropriate. Maybe I’m flying off the rails when I say this, but putting our libraries into e-readers almost seems like a nihilistic admission that everything everyone says is equally valueless. Sure, in the grand, cosmic scheme, our little glued-together piles of marked paper probably are just white noise. But to us, to the humans who write, read, and collect books, those books do more than Twitter could ever do, by connecting us with people long departed as though they live on, so that we can be more than just today, but the accumulation of all our yesterdays. And books can record, even unwittingly, our mistakes, so we can continue to learn from the failures of long ago.

Computers and the internet and digital data storage are enormously useful to move lots of information around quickly, but they rely on a broad range of technologies just to stay useful: the generation of electricity, the manufacture of new storage devices, the creation of software to migrate from old devices to new ones every few years, and so on. Permanence is not their strong suit, not yet at least. But a book, once made, is relatively easy to maintain. Just leave it alone it in a cool, dry place and your descendants will probably still be able to read it in a thousand years. Which is not to say that books are indestructible, or that every book ever written is still around, just waiting to be perused at the Library of Congress, because they’re not. But books are proven. Their physicality is not just aesthetically pleasant, but can also be commensurate with the importance of their more abstract contents.

I love my MacBook and my iPhone as much as the next guy. I’m on Facebook and Twitter. I do most of my professional legal research online. I’m blogging right now. But I keep myself surrounded by books and I write on paper with a fountain pen because, while those electronic gadgets supplement the hell out my more antique devices, none of them can replace those things.

A world without newspapers may be a world without a conscience, unless you are Henry David Thoreau, but a world without books is a world with amnesia.

From America’s finest news source:

Unable to rest their eyes on a colorful photograph or boldface heading that could be easily skimmed and forgotten about, Americans collectively recoiled Monday when confronted with a solid block of uninterrupted text.

Dumbfounded citizens from Maine to California gazed helplessly at the frightening chunk of print, unsure of what to do next. Without an illustration, chart, or embedded YouTube video to ease them in, millions were frozen in place, terrified by the sight of one long, unbroken string of English words.

“Why won’t it just tell me what it’s about?” said Boston resident Charlyne Thomson, who was bombarded with the overwhelming mass of black text late Monday afternoon. “There are no bullet points, no highlighted parts. I’ve looked everywhere—there’s nothing here but words.”

Sound familiar?

Eric Martin says what I have wanted to say, but have been too busy futzing around with other things to actually say, so I link and quote him here:

Many prominent conservatives are making the argument that Judge [Vaughn] Walker is gay and, therefore, his decision regarding Prop 8 might have been unduly influenced by his sexual orientation.

It’s not that I would suggest that his sexual orientation (if he is gay) has no influence on his jurisprudence, but here’s the thing, if homosexuality influences analysis of legal issues involving civil rights for homosexuals, doesn’t heterosexuality also influence decisions regarding these same matters?

Do read the rest, which includes a great quote from Stephen Colbert. (Credit to Ed Brayton.)

Judges, being human, are always subject to the potential constraints of their individuality, which comes with all the things that some people might call “baggage”: cultural, ideological, and socioeconomic backgrounds, for instance. Since everybody is similarly constrained, and since we need judges to resolve our disputes, and since a perfectly objective judge would probably just say “42” every time, we generally allow that every judge is going to see things differently. Random (or at least methodologically disinterested) assignment of trial judges and appellate review both help to compensate for some of that, especially where the reviewing panel is more diverse, but there is still plenty of room for criticism on the ground that the judiciary as a whole is not appropriately reflective of actual diversity in the general population (see, e.g., this article).

And, as Professor Dorf recently asked (in a discussion of the Supreme Court, but trial court judges undoubtedly have the same problems), if a judge is conscientious and recognizes his or her “ideological biases,” what should he or she do?

One answer would be to try to surface ideological biases and control for them.  Yet presumably they’re already doing that, and it probably wouldn’t work.  There is evidence that alerting people to their biases does not necessarily cure them of those biases (and can sometimes exacerbate them).  In the end, I suspect that other than resigning, the best that a Justice can do is to proceed as before.

Nobody seriously believes the judicial system is perfect. Judges have made both good and bad decisions (for both good and bad reasons) since the first two people asked a third to resolve their dispute. That will never change. It’s just unrealistic to expect that people will not be biased. That’s why we use a grosser standard to determine judicial bias, turning to things like the judge’s financial interest in the outcome of a case, or preexisting relationship with one of the parties. Even if Judge Walker is gay, how would we determine whether he has a personal interest in the constitutionality of a law banning same-sex marriage? Wouldn’t we also need to determine whether he has a desire to marry a partner of the same sex? Should we determine whether he has somebody lined up, or whether this “interest” is wholly contingent on finding someone? How far would such intensely personal questioning go?

And if we substituted a straight judge, wouldn’t we have to determine the ideological biases of that judge? For instance, does it matter whether the judge is a member of one of the religious groups that were the proponents of Proposition 8, or a member of a religious group that opposed it?

Finally, after asking all the questions necessary to eliminate this potential bias in a judge, what kind of precedent have we set for other litigants? If an atheist files a lawsuit to raise a claim under the Establishment Clause, is he or she entitled not to have the case heard by a judge with views like those of Roy Moore?

While I appreciate the idea that people are biased by all sorts of under-the-surface factors, and agree that it presents an interesting problem, practicality leaves us with no option but to go forward anyway. Recognizing human biases and imperfection is an interesting and potentially consciousness-raising enterprise, but letting it get too far into the dispute resolution process would bring the whole system grinding to a halt, leaving everyone without access to third-party resolutions of their disputes. There are better ways to address the problem, like ensuring that the judiciary as a whole provides a better demographic representation of the general population.

Karma Sungrap Ngedon Tenpa Gyaltsen (stage name: “Dzogchen Ponlop Rinpoche“) asks “Is Buddhism a religion?” and answers that “the path the Buddha taught . . . is spiritual, not religious.”

A few years ago, Free Inquiry had an article about how secular humanists and atheists should avoid words like “spiritual” because they invoke supernaturalist ideas. They even had a whole list of replacement words, which just seemed to replace the forbidden idea with cumbersome language. I don’t remember any of them, and I am not sorry for not trying. It was a weird idea for people who claim to promote “free thought.”

“Spiritual” might be a fine word if people hadn’t mucked it up by making “spirit” into a synonym for “ghost.” It just comes from the word that means “breath,” and would perhaps be nicely suited to something like Zen Buddhism, where zazen often begins with simply recognizing one’s own breath. Except the “ghost” idea took over and people started using “spiritual” to mean a view that ours is something like a demon-haunted world. Even so, letting “breath” represent some essential quality of being would still be a discardable metaphor like any other if it impedes the path to truth by preventing the consideration of other news or ideas.

And speaking of the path to truth, there are better ideas on the road to that “spiritual, not religious” answer in the essay by Dzogchen Ponlop Rinpoche. For example:

[Siddhartha] was a great explorer of mind and its limits. He was open-minded, seeking truth, with no preconceived agenda. He thought, “Okay, I’ll do these religious practices and see if I can find the truth that way.” He did the practices, he didn’t find the truth, and so he left the religion. Like Siddhartha, if we really want spiritual enlightenment we have to go beyond religiosity. We have to let go of clinging to preconceived religious forms and ideas and practices.

Religion, if we don’t relate to it skillfully, can trap us in another set of rules. On top of all the ordinary rules we are already stuck with in this world, we pile on a second set of religious rules. I’m not saying there is anything bad about religion or rules, but you should be clear about what you’re seeking. Do you want religion and a set of rules to follow, or do you want truth? Truth has no religion, no culture, no language, no head or tail. As Gandhi said, “God has no religion.” The truth is just the truth.

Which reminds me of something I said to many people during the time when I was leaving religion: “If what you believe is true, then it can withstand any questions and any criticism.” But I found that those people, like most “religious” people I have encountered since, wanted their practice and worship to be a place made comfortable by a set of rules that seems almost wholly intended to do nothing but limit questions and prevent criticism, to provide a “preconceived agenda” that would shelter them from a search for truth instead of assisting them on one.

Maybe there are religious people who “relate to it skillfully,” so that they can value the practice and still seek the truth, but I have not met any of them. I see people who turn to the various flavors of Christianity, to Islam, to Judaism, and so on, because they want “answers”—which is to say they want the search for truth to end, to have truth handed to them, or to have it readily available in a codified format, so they can say, “Ah, now I can stop worrying about that.” And that would be fine, I guess, as long as they don’t turn around and say things like this:

U.S. District Judge Vaughn Walker’s ruling [on the unconstitutionality of Proposition 8] desecrates and defiles every Christian marriage ceremony performed in this country for the past 250 years. The Constitution was created by Christian men, including a number of Presbyterian pastors.

The ruling desecrates our marriage that began in purity and continues in fidelity for 60-plus years. No gay or lesbian union will ever begin with these qualities, but a union upheld by immoral persons will be greeted with open arms by Satan himself.

But people obviously do turn around and say things like that, where, having received what they believed to be completed truth, they are no longer susceptible to new—and especially opposing—ideas, to the possibility of change. It is one thing to state an opinion forcefully, to say This is what I think and why, and to remain open to challenges on the why, but something altogether different to say This is what is and I will not be moved, because it is definitive. It destroys the possibility of learning from newness and difference and punishes people for curiosity. What help is that? When you have so locked yourself into the “truth” you claim to have received that you believe a federal court ruling “desecrates [y]our marriage,” how have you done anything but made a new and unnecessary problem for yourself? And when the same closure motivates political action to limit others, the straightjacket is needlessly forced onto them, too.

If Buddhism or religion or whatever else helps you along the path to truth, then go right ahead. And if you want to call it “spirituality,” fine. You can even impede your capacity for curiosity or your receptivity to new or opposing ideas if you want. But don’t use the political process to take others down with you. The truth is not “out there,” in some platonic ideal form, to be plucked, put in a box, and deployed by the people who caught it. But the search for truth will never end; everything is provisional.