Author: Mike Appleton

Paul Ryan, Censor Deputatus


By Mike Appleton, Weekend Contributor 

I’ll admit that I had no idea who was serving as Chaplain of the House of Representatives until the recent controversy over the forced resignation of Fr. Patrick Conroy, S.J. But if someone had told me only that a Catholic priest had just been fired as House Chaplain, I would have guessed that he was a Jesuit.

The Society of Jesus has been a thorn in the side of princes and popes for centuries. Jesuits have been periodically banned by kings and suppressed by the Church, but they have always returned to continue speaking truth to power, inspired by a rich tradition of Ignatian spirituality and a fierce intellectual independence. My own alma mater, Jesuit High School in El Paso, Texas, occupied a campus built by Mexican Jesuits during a period of anti-clerical political repression in Mexico.

While I was still contemplating the meaning of the termination, the resulting political outcry resulted in Paul Ryan’s capitulation to political reality and Fr. Conroy’s reinstatement. But the question remains: what was behind the request for his resignation? The explanation initially provided, that he was not meeting the “pastoral needs” of  his congressional flock, struck me as contrived. Nor did I buy into the excuse that he was a victim of generalized anti-Catholic attitudes among certain House members. The correct answer, I believe, lies behind Fr. Conroy’s own comments that he had been asked to “stay out of politics” following a prayer before the opening of a House session on the then pending tax overhaul bill. The words of that prayer suggest that Fr. Conroy’s sin was primarily theological.

Continue reading “Paul Ryan, Censor Deputatus”

The Health Care Debate We Should Be Having-Part One

By Mike Appleton, Weekend Contributor

“We’re going to have insurance for everybody. There was a philosophy in some circles that if you can’t pay for it, you don’t get it. That’s not going to happen with us. . . . It will be in a much simplified form. Much less expensive and much better.”

-President-elect Donald Trump, Washington Post (January 15, 2017)

Even if one supports the Affordable Care Act, there was nothing satisfying about watching the legislative circus over repeal and replacement unfold in the Senate over the past few weeks. To an outsider the entire process appeared disjointed and at times almost incoherent. It became increasingly impossible to fathom what Senate Republicans were trying to accomplish. So when the final effort, an eight-page bill apparently drafted over lunch, was rejected in a 51-49 vote, the most appropriate emotional response was neither elation nor disappointment, merely exhaustion.

Efforts to lay blame for the debacle have already begun, of course. Reince Preibus has been summarily booted from the White House and the three Republicans who defied Mitch McConnell by voting against the so-called “skinny” repeal bill have been castigated by the right. But it would be wrong to think that there isn’t a way forward. That first requires that we dispel several misconceptions. Continue reading “The Health Care Debate We Should Be Having-Part One”

Lessons from State of Washington v. Trump

By Mike Appleton, Weekend Contributor

“A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions.”

-Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613 (1952)

The decision of the Ninth Circuit Court of Appeals earlier this week upholding the temporary restraining order against enforcement of Executive Order 13769 produced immediate outrage in the Trump Administration. The President himself characterized the ruling as “disgraceful” and claimed that any subsequent act of terror on our shores would be laid squarely at the feet of the judiciary. Mr. Trump has been variously advised to take the matter to the Supreme Court or ignore the lower court orders entirely. In my view, the wisest option is to return to the drawing board, an idea that is apparently also under consideration.

The anger over the Ninth Circuit’s ruling is misplaced. It is neither warranted by the decision itself nor by the perceived threat to presidential power. The court did not rule on the merits of the plaintiffs’ claims and its continuation of the TRO until completion of an evidentiary hearing in the trial court is not fairly predictive of the final outcome. Moreover, the Administration has not advanced any substantive argument, either in court filings or in public statements, to support the notion that temporarily maintaining current immigration policy creates serious security risks. Indeed, we are still waiting for an explanation of what the phrase “extreme vetting” even means.

Instead of railing against the decision and engaging in personal attacks against judges, the President would be well-advised to read the opinion carefully. It contains several useful lessons for the future of his presidency.

Continue reading “Lessons from State of Washington v. Trump”

Mr. Mnuchin’s Mortgage Marauders

By Mike Appleton, Weekend Contributor

“Corporation, n. An ingenious device for obtaining individual profit without individual responsibility.”

-Ambrose Bierce, “The Unabridged Devil’s Dictionary”

I have frequently criticized media coverage of legal issues. For example, news reports often attribute significance to orders on routine procedural motions that is wholly unwarranted. And even reporters with legal backgrounds are not clear and understandable in their explanation of court rulings to laypersons. So when I came across reports that Treasury Secretary-designate Steven Mnuchin’s bank had filed a mortgage foreclosure action against a 90 year old Florida widow over 27 cents, I was skeptical.

But the story interested me because the subject of the suit resides in Polk County, only an hour’s drive from where I live. In addition, with the advent of electronic filing in court proceedings, I knew that I could access the court files online and review the actual record in the case. I have now done so and have concluded that the stories have been misleading, but not for the reasons one might expect. What has happened to Ms. Ossie Lofton of Lakeland, Florida is worse than what has been reported.

Continue reading “Mr. Mnuchin’s Mortgage Marauders”

What RFRA Hath Wrought-Part 3

By Mike Appleton, Weekend Contributor

“Smith relegated our national commitment to the free exercise of religion to the sub-basement of constitutional values.”

-Michael P. Farris and Jordan W. Lorence, “Employment Division v. Smith and the Need for the Religious Freedom Restoration Act,” 6 Regent U.L.Rev. 65, 66  (1995)

Several years following the ratification of the Constitution, a man named Jonas Phillips was subpoenaed to testify on behalf of a defendant in a criminal case in Pennsylvania. The problem was that the trial was scheduled for a Saturday and Mr. Phillips was a devout Jew. He refused to be sworn on the Jewish Sabbath and was subsequently held in contempt and fined ten pounds, despite invoking the protection of the Pennsylvania constitution, which provided that “no human authority can in any case whatsoever, control or interfere with the rights of conscience. . . .”  Stansbury v. Marks, 2 Dall. 213 (Pa. 1793). Fortunately, the defendant waived Mr. Phillips’ appearance and the fine was discharged.

Jonas Phillips’ “rights of conscience” were deemed subordinate to the orderly administration of the judicial system in a state which boasted one of the most religiously tolerant constitutions in the young nation. Therefore, when the Supreme Court held in 1878 that rights of conscience likewise could not be raised as a defense to a charge of bigamy, the ruling was hardly earthshattering.  Reynolds v. United States, 98 U.S. 145 (1878). And the decision over one hundred years later in Employment Division v. Smith, 494 U.S. 872 (1990), appeared to confirm a principle that had largely guided free exercise jurisprudence since the nation’s founding: the Religion Clauses do not mandate religious exemptions from valid laws intended to be binding upon all of us. Yet the Smith decision produced a harsh political and academic reaction, resulting in legislation that has radically altered the free exercise landscape. How did that happen?

Continue reading “What RFRA Hath Wrought-Part 3”

What RFRA Hath Wrought-Part 2

By Mike Appleton, Weekend Contributor

“Those situations in which the Court may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area.”

-Sherbert v. Verner, 374 U.S. 398, 423 (1963) (Harlan, J., dissenting)

Were Maurice Bessinger still alive, he would undoubtedly be a strong supporter of the Religious Freedom Restoration Act. Had that law been available in 1964, history might well read differently.

Mr. Bessinger owned a small chain of barbecue restaurants in South Carolina known as “Piggie Park.” As a matter of company policy, African Americans were prohibited from consuming food on the premises of his restaurants and were required to place and pick up orders from the kitchen window.

When a class action was filed against Mr. Bessinger under the public accommodations provisions of the Civil Rights Act of 1964, among his defenses was the claim that the Act violated the First Amendment because “his religious beliefs compel him to oppose any integration of the races whatsoever.” Newman v. Piggy Park Enterprises, Inc., 256 F. Supp. 941 (1966). The court had no sympathy for his defense. “Undoubtedly,” it said, “defendant Bessinger has a constitutional right to espouse religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence and support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” 256 F. Supp. at 945.

Mr. Bessinger partially prevailed at the trial court on interstate commerce grounds, but lost on appeal and was assessed attorney’s fees for his trouble, the Fourth Circuit finding that in view of a prior Supreme Court ruling upholding the constitutionality of the Civil Rights Act of 1964, the assertion that he was not bound because the law “contravenes the will of God” and constituted interference with “the free exercise of the Defendant’s religion” was legally frivolous. Newman v. Piggy Park Enterprises, Inc., 377 F.2d 433 (4th Cir. 1967), aff’d, 390 U.S. 400 (1968).

Had the Religious Freedom Restoration Act been in effect when Mr. Bessinger was sued, might he have prevailed? Perhaps.

Continue reading “What RFRA Hath Wrought-Part 2”

What RFRA Hath Wrought

By Mike Appleton, Weekend Contributor

“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.”

-Munn v. Illinois, 94 U.S. 113, 126 (1876)

The events in Indiana and Arkansas during the past week contain at least two lessons. The first is that hypocrisy is like teeth; most of us have some and exposure usually produces a nasty bite. Second, interminable debates on the topic of comparative victimology are, well, interminable. Neither lesson is useful. So perhaps it is time to take a deep breath and engage in a bit of dispassionate reflection on the scope and application of the Religious Freedom Restoration Act.

Let us begin with the oft repeated claim that a person operating a business ought to have the right to refuse service to anyone at any time for any reason (or no reason at all). Whatever merits this claim may have as a philosophical position, it has never found approval as a principle of law. The reason is that historically the common law has recognized that there are categories of commercial enterprise of sufficient importance to the general welfare to mandate their availability to all members of the public on equal terms. Continue reading “What RFRA Hath Wrought”

Vengeance as Policy

By Mike Appleton, Weekend Contributor

“Towards thee I roll, thou all-destroying but unconquering whale; to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee.”

-Herman Melville, Moby Dick

The response to the grotesquely brutal murder of Lt. Muath al-Kaseasbeh on February 3 was intense and swift. Within hours after the Islamic State released its obscene video, Jordan hanged two al-Qaeda prisoners. Thousands of Jordanian citizens marched through the streets of Amman in a demonstration joined by Queen Rania. The young pilot’s father, Safi al-Kaseasbeh, demanded “revenge, severe revenge for the blood of Muath.” Tribal elders, who only recently were arguing that Jordan should withdraw from the U.S.-led coalition conducting airstrikes in Syria and Iraq, now called for retribution in the name of “Muath the Martyr.” By the following day, Jordanian F-16s were bombing ISIS targets in Syria.

The conservative media in this country promptly labeled King Abdullah II a hero. On Fox & Friends, Elisabeth Hasselbeck praised him for “stepping up with strong leadership and clarity, ” adding, “What is our president doing?” Even Charles Barkley weighed in, publicly expressing his wish that President Obama were more like the Jordanian king.

Please excuse me if I refrain from joining the fawning multitudes.

Continue reading “Vengeance as Policy”

Myth and the Marriage Pledge

By Mike Appleton, Weekend Contributor

“That no person whatsoever in this Jurisdiction shall joyn any persons together in Marriage but the Magistrate, or such other as the General Court, or Court of Assistants shall authorize in such places where no Magistrate is near.”

-Lauues and Libertyes of Massachusetts (1648) (Legal Classics Library Ed. 1982)

First Things is a highly regarded ecumenical journal on religion and society. Its editor, R.R. Reno, recently posted online a document entitled “The Marriage Pledge.” The pledge is a reaction to the expansion of same-sex marriage recognition across the country, a phenomenon which conflicts “with the Christian understanding of marriage between a man and a woman.” To protest these changes, Christian ministers who sign the pledge agree that they “will no longer serve as agents of the state in marriage” and “will no longer sign government provided marriage certificates.” As of this writing, the pledge has attracted over 400 signatories.

The Marriage Pledge is an unfortunate document, however, and more than a little ironic. It is ineffectual because it presumes a level of importance that the clergy does not have in the formation of lawful marriages, and it abandons religious believers in the process. Those who understand something of the history of marriage will correctly perceive the pledge as a form of witless moral witness.

Continue reading “Myth and the Marriage Pledge”

Blasphemy and Freedom of Speech

By Mike Appleton, Weekend Contributor

“The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”

-Watson v. Jones, 80 U.S. 679, 728 (1872)

In November of 1950 an Italian film directed by Roberto Rossellini entitled “L’Amore” opened in New York City with English subtitles. The film was an anthology of three stories, one of which, “The Miracle,” told the tale of an emotionally troubled peasant girl who is impregnated by a transient and believes that she is giving birth to Jesus. The film was voted best foreign language film by the New York Film Critics’ Circle. It was also condemned by the Catholic Legion of Decency as “a sacrilegious and blasphemous mockery of Christian religious truth.” Francis Cardinal Spellman, the powerful archbishop of New York, insisted that the film demonstrated a need for stronger censorship laws. Within a few months the New York Board of Regents revoked the license to show the film, a decision upheld by the New York state courts under a law permitting the banning of any film “that may fairly be deemed sacrilegious to the adherents of any religious group.”

The subsequent legal battle is instructive in considering the reaction to the horrific attacks in France over the past two days. Continue reading “Blasphemy and Freedom of Speech”

The Theological Dimensions of Climate Science Denial

By Mike Appleton, Weekend Contributor

What you going to do when the rain comes?

Are you going to sail on the rising seas like Noah?

What you going to feed your little orphans

When there’s no more fish in the sea forever?”

Brendan Perry, “The Devil and the Deep Blue Sea,” from Ark (Cooking Vinyl, 2010)

In April of this year the Intergovernmental Panel on Climate Change (IPCC) issued the first part of its Fifth Assessment Report on climate change. Among its conclusions is that “atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased to levels unprecedented in at least the last 800,000 years.” The report also states that it is “extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.” In order to limit the increase in global temperature to two degrees Celsius, the panel estimates that it will be necessary to reduce greenhouse gas emissions 40 to 70 percent below 2010 levels by 2050 and to virtually nothing by the end of the century.

The political response was predictable. The House Science, Space and Technology Committee held a short hearing, promptly declaring that the science is not “settled” and accused Democrats of “trying to scare America.” Republican reaction to this week’s announcement of a climate agreement with China was even harsher, with Sen. Mitch McConnell complaining that “these carbon emission regulations are creating havoc in my state and other states across the country.”

Although there are serious scientists who dispute the IPCC findings, the cumulative scientific evidence that anthropogenic activities significantly impact climate change is overwhelming.  So why are the IPCC’s findings so controversial? The answer is that the politics of climate science denial are largely shaped by two forces: the contrived skepticism of the energy industry and the religious skepticism of the evangelical right.

Continue reading “The Theological Dimensions of Climate Science Denial”

Religious Freedom and the Values Voter Summit

By Mike Appleton, Weekend Contributor

“All governments are theocracies. We now live in a secular humanist theocracy. I want to change that to a government with God at its head.”

-Gary DeMar (quoted in John Sugg, “A Nation Under God,” Mother Jones (December, 2005)

When I started first grade in 1951, each school day began with the Pledge of Allegiance. We recited “one nation, indivisible,” because people understood that fidelity to one’s country is not a religious virtue. The National Prayer Breakfast was not on anyone’s calendar because it didn’t exist. Politicians felt no compulsion to invoke God’s blessings on the United States at the conclusion of every speech. Protestants opposed every effort to secure public funding of Catholic parochial schools in order to preserve the “wall of separation” between church and state. The corner grocer didn’t care whether a customer was gay or had been born again. Textbooks were not reviewed by religious committees for conformity with the King James Version. No serious person had yet suggested that insentient, artificial commercial entities could magically channel the religious beliefs of their shareholders. And no one complained that a war was being waged against religion.

But following some of the events at this year’s Values Voter Summit, I have become nostalgic for 1951.

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Religious Pluralism and the Niggling Test

By Mike Appleton, Weekend Contributor

“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

-Epperson v. Arkansas, 393 U.S. 97, 104 (1968)

“This commission chooses to stand by the tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents.”

-Brevard County (Florida) Commission Chair Mary Bolin Lewis (August 15, 2014)

On August 19th the County Commission in Brevard County, Florida voted unanimously to reject a request by the Central Florida Freethought Community, an organization of atheists, agnostics, humanists and free-thinkers, to be added to a rotating list of groups invited to give the opening invocation at commission meetings. Instead, the commission approved a letter drafted by the county attorney offering the group three minutes to speak during the public comment portion of its meetings. According to the letter, the rejection was appropriate because, “The prayer is delivered during the ceremonial portion of the county’s meeting, and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist.”

The Brevard County decision comes on the heels of the Supreme Court’s opinion in Town of Greece v. Galloway, 572 U.S. ______ , 134 S.Ct. 1811 (2014), a case that more than anything else illustrates that the current state of Establishment Clause jurisprudence is, to put it bluntly, a mess. Continue reading “Religious Pluralism and the Niggling Test”

Muriettic Acid

By Mike Appleton, Weekend Contributor

“Taking a child he placed it in their midst, and putting his arms around it he said to them, ‘Whoever receives one child such as this in my name, receives me; and whoever receives me, receives not me, but the one who sent me.’ “

-Gospel of Mark, Ch. 9, verses 36-37, New American Bible (Thomas Nelson, 1989)

“If kids come in my backyard, I’ll shoot them.”

-unidentified Murietta, California resident protesting the sheltering of undocumented child immigrants (July 1, 2014)


“Collective fear,” wrote Bertrand Russell, “stimulates herd instinct, and tends to produce ferocity toward those who are not regarded as members of the herd.” The ugliness in Murietta, California several weeks ago provided ample evidence, if any were needed, of the power of collective fear. But even more disturbing than the angry shouts at frightened children unable even to understand the words hurled at them has been the reaction of political leaders. Appearing on Fox News Sunday, Gov. Rick Perry demanded that the President dispatch National Guard troops to the border, for who knows what purpose. Rep. Louie Gohmert (R. Texas) has been even more vocal. Most of you may recall Rep. Gohmert’s rants several years ago about “anchor babies” born in the United States to be trained as terrorists. This time around he is claiming that the Administration is encouraging the influx of unaccompanied children as part of a plot to turn America “blue” and “ensure Republicans will never get elected again.” Of course, that will require that all of these tens of thousands of children survive the various diseases with which he also claims them to be infected and carrying over the border. Rep. Gohmert could be dismissed as another congressional crackpot but for the fact that he currently serves as vice chair of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. Continue reading “Muriettic Acid”

My Misogyny

By Mike Appleton, Weekend Contributor

“Until you give men like Rodger a way to have sex, either by encouraging them to learn game, seek out a Thai wife, or engage in legalized prostitution-three things that the American media and cultural elite venomously attack, it’s inevitable for another massacre to occur. Even game itself, as useful as it is on an individual level, is a band-aid fix upon a culture which has stopped rewarding nice guys while encouraging female whoring to benefit only the top 10% of alpha males, all in the name of societal progress.”

-Roosh, “No One Would Have Died If PUAHate Killer Elliot Rodger Learned Game,” (June 1, 2014).

When I was in high school in the early ’60s, the Loretto Academy prom was a significant annual event. Loretto was a Catholic school for girls, and I attended Jesuit High School, an all boys school. Much of our social interaction was with the girls of Loretto. Our drama societies jointly produced plays. Loretto provided our homecoming sweethearts. Loretto Academy was our sister school, if you will.

So as a high school junior I was excited about the upcoming Loretto prom, and was hoping that one of several girls I particularly liked would invite me. Then one evening, a good two months before the event, I received a call from Helen (not her real name). I had known Helen since grammar school. She was tall and thin and plain-looking. She was also very smart and very sweet, attributes too frequently unappreciated by 16 year-old boys. She had called, she said, to invite me to the prom. Continue reading “My Misogyny”