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Dream or Nightmare? Glenn Beck Standing in Martin Luther King’s “Spot” at the Lincoln Memorial August 29, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Religion.
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Martin Luther King uttered his famous “I had a dream” speech 47 years ago at the Lincoln Memorial.  ‘Wonder what he would have thought of Glenn Beck’s religious revival as an anniversary celebration….? Glenn Beck says the timing is just a coincidence or divine providence.  He started planning a political rally about a year ago, but at some point realized that there was a need for a religious taking back of America.

Wow, the First Amendment’s promise of free speech is in full force–-that’s a good thing–-But what about the part of the same Amendment that assures not only freedom of religion, but separation of church and state?  It’s a little frightening to see a call to reclaim America as a religious state.  Especially when the folks funding the Tea Party are extraordinarily wealthy big business types who have their own agendas.  (See Frank Rich’s column on the Billionaires Bankrolling the Tea Party here)

So, is Glenn Beck’s rally, America at its finest or democracy at its scariest?  Democracy is still the best system that we have devised to allow for individual freedom and liberty, but sometimes one person’s dream is another person’s nightmare.


Embryonic Stem Cell Research—A Democratic Hot Potato August 28, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Stem Cell Research.
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A game of hot potato among the three branches of government describes the ongoing struggle to use embryonic stem cell research to attempt to find a cure for paralysis and  diseases such as Parkinson’s, ALS, and juvenile diabetes.

Judge Royce Lamberth’s order enjoining the use of embryonic stem cells in federally financed research stunned the scientific community this week. “Dr. Francis Collins, director of the National Health Institutes, told reporters Tuesday in a telephone briefing that he was “shocked” by the ruling and that “this decision has the potential to do serious damage to one of the most promising areas of biomedical research. It comes just at the time when we were really gaining momentum.”

The ongoing research is being conducted in accordance with both the Bush administration’s executive order and the Obama administration’s expansion of that order which is reflected in the current National Institute of Health (NIH) regulations.  Essentially, the regulations permit embryonic stem cell research as long as the embryos were created with private funding and the donors consent to the use of the embryos for research.

Embryos are generally available from the surplus at fertility clinics.   Individuals who are attempting in vitro fertilization often have lab-cultivated embryos remaining if the in vitro fertilization is successful in an early attempt.  If not used for research, the embryos will be discarded.

Anti-abortion groups oppose the use of these embryos as the destruction of life.  However, these embryos will be destroyed regardless, so proponents of the research point to the myriad of diseases and suffering that may be alleviated if the research is permitted.  Interestingly, the opponents in this debate are somewhat fluid as evidenced by various conservatives recognizing the distinction between embryonic stem cell research and abortion when one of the targeted diseases strikes a loved one.

So what are the rules of hot potato in this emotionally charged democratic game?

Let’s break it down.  Voters elect their representatives to Congress.  Congress then passes legislation, in this case the Dickey-Wicker Amendment mandating that federal funding not be used for research involving the destruction of embryos.  The President is charged with executing the law.  In executing the law, the President often delegates the details to an administrative agency, in this case NIH, to draft regulations consistent with Congressional legislation.   During the creation of these regulations, the public is offered the opportunity to comment.  (NIH received over 12,000 comments on these regulations.)  The agency is required to consider the comments and publish final regulations.

An agency’s final regulations may be challenged in court if there is a viable argument that the agency exceeded its authority.   In this case, Christian groups and researchers using adult stem cells, and vying for the same federal funding dollars as the embryonic cell research groups, filed suit.  The complaint alleges that the NIH regulations exceed the agency’s authority because Congress has clearly spoken on the issue of embryonic stem cell research–no federal funding for any research that destroys or discards an embryo.  When Congress unambiguously declares its intent, then the agency may not interpret, but only execute that intent. Judge Lamberth concluded that Congress has spoken without ambiguity and therefore the regulations go beyond the intent of the law. The case will continue to wind its way through the judicial system or Congress has the prerogative to change the law.

“Scientists said the ruling, which came as a surprise to many in the field, highlights the danger of having medical research policy that is subject to the whims of the judicial system.

Michael West, CEO of Embryonic Sciences, Inc. and adjunct professor of bioengineering at the University of California, Berkeley likens this kind of ruling to playing “political football” with medical research and says he is “ashamed of our government.”

“These roadblocks and delays could well mean the unnecessary suffering or death of a fellow human being some day in the future. We should not allow political differences to encroach on our moral duty to alleviate human suffering when it is in our power to do so,” he adds.” (See ABC report here)

Roger Clemens Throws a Destructive Curve Ball…And Other Matters of Deception, Ethics and Mindfulness August 24, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Mindfulness, sports.
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Perhaps we should add boomerang pitch to the baseball accomplishments of Roger Clemens.  What is the boomerang pitch?  It is a pitch that is thrown VOLUNTARILY despite the fact that it is destined to return and hit the pitcher upside the head.  Roger Clemens has been indicted for perjury after voluntarily  testifying before Congress and adamantly denying that he used illegal performance enhancing drugs.  The reaction of the public has ranged from shock, awe and disgust to calls for forgiveness based upon Clemens’ notable contributions to baseball and a suggestion that he is being singled out for prosecution because of his celebrity.  (That’s a new twist on the analysis of celebrity status and its impact on prosecution….)

We could easily dismiss that argument except that it seems to be a current cultural theme.   Huh?  Well, there has been much speculation and analysis about why Rod Blagojevich, former governor of Illinois, was only found guilty on 1 of the 24 criminal counts against him that involved allegations and an abundance of evidence of  dishonesty, fraud and an attempt to sell the Senate seat left vacant by President Obama’s election.  Apparently, some of the jurors just thought that Blagojevich was being “singled out” by the government for activities that are just typical political behavior.

Clemens and Blagojevich maintain that they are not lying–-In fact, Clemens’ attorney has recently defended Clemens with a questionable “doesn’t make sense that he would lie” argument and Blagojevich is spending time at  a Comic Convention, appearing on talk shows and claiming that his political future is not over.   While the final “jury” is not in on these two, their denials are reminiscent of the deceptions perpetrated by the likes  of John Edwards, Mark Sanford, and Elliot Spitzer, just to name a few.

What’s the problem?  Is it a “simple” matter of ethics and morality?  There certainly has been a call for more ethics and character education in schools. And the media and criminal justice system seems to have sharpened the focus on ethics violations in recent years.  The problem is not simply one of ethics–-Surely, most of these people who stumbled and the many others who we all know, but do not have the notoriety to make “the news” with their missteps,  knew right from wrong.  In fact, unless there is a developmental mishap, we all develop a conscience by about the age of six years old.

So, what’s the problem?   The problem is a lack of mindfulness.  What’s that? Mindfulness has to do with an individual’s conscious awareness in the moment.  We  teach a course in Professional Responsibility and Mindfulness at the University of Miami School of Law. When  students were asked on the opening day of class to define mindfulness, they offered descriptive words and phrases such as: awareness, overcoming animal instincts, deliberate action, finding work/life balance , considering the effects of your actions.

Scott Rogers, the founder of the Institute for Mindfulness, who co-teaches the course provides the students not only with an understanding of the concept of mindfulness, but also with the underpinnings of the neuroscience that explains decision-making and what occurs when we impulsively react as opposed to thoughtfully respond.

It is a complicated topic about which much has been written, but it is a simple concept for the purposes of our discussion today.  The bottom line is that we should be teaching not only ethics, but also mindfulness.  It is important to teach children moral lessons, but if you do not give them the tools to understand how to apply these lessons, then the instruction is incomplete.  Why not teach children from a young age how our minds function, how emotion influences decisions and actions, and how to be aware of their own feelings and reactions.? Why not continue this education every year along with math and english?  (And, by the way, it’s not too late to teach the adult population—Neuroscience confirms that we are able to continually learn, expand and change our brains.) Just imagine a world in which most people existed in a conscious state of awareness most of the time.

Maybe Clemens and Blagojevich and all of the other ethical “missteppers” in our midst were aware, considered their primal impulses, the effects of their actions  and took deliberate, conscious action.  Maybe the earth is flat.  Maybe it’s time to teach mindfulness along with the orbiting earth.

Runaway Bride? Gay Marriage On Hold (Again) in California August 16, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society, Religion.
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Just a quick update to the “Wedding Bells” post of August 12th  ….

Judge  Vaughn Walker lifted the stay on gay marriage, but allowed six days for the Proposition 8 team to appeal his ruling to the Ninth Circuit’s Federal Court of Appeals.  A three judge panel at that Court again imposed a stay which prevents gay marriage in California pending a review of the merits of Judge Walker’s decision.  The decision to impose the stay does not necessarily reflect what the Court  will decide about Judge Walker’s determination that Proposition 8 is unconstitutional.   The stay maintains the status quo–-no gay marriage–-until there is a final decision on the case.

One other interesting note is that the main defendants, Governor Schwarzenegger and Attorney General Jerry Brown, are not interested in pursuing an appeal.  In fact, they have voiced opposition to Proposition 8. So, the Court also needs to decide whether the parties that intervened in the case, primarily ballot sponsors such as the group Protectmarriage.com, may proceed with the appeal even though they do not enforce the laws of the state.

A bit unusual….In other words, the majority of Californians (52%) voted to ban gay marriage.  Some of its citizens, the minority in this case, objected claiming that the majority had violated the minority’s Constitutional rights. The Court agreed with the minority and the Executive Branch does not care to appeal the case because it doesn’t like the law.  A group of citizens who support Proposition 8, the majority, were allowed status in the case to argue for the majority and that group is the only one “left standing.”  Regardless of your position on gay marriage, we all should embrace the vision of democracy in motion as it “walks down the aisle.”

Wedding Bells in California on August 18th ? Judge Walker Lifts the Stay on Gay Marriage August 12, 2010

Posted by legalethicsemporium in Gay Marriage, Law, Ethics & Society, Religion.
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Tears of joy and of outrage may flood the streets of San Francisco today as Judge Vaughn Walker, who invalidated California’s Proposition 8  last week, has now removed the last impediment to gay marriage.  He had delayed the implementation of his order with a legal stay to allow time for argument over whether the stay should remain in effect pending appeal of his decision. Judge Walker has concluded that it is not in the public interest to maintain the stay.  Therefore, people are free to get married, beginning on August 18th, in accordance with his ruling even though his decision is being appealed to a higher court. However, the August 18th date does allow time for a ruling on the stay by the United States Court of Appeals for the Ninth Circuit, the Court to which the case has been appealed.

Judge Walker’s decision that invalidated Proposition 8  was based upon the evidence presented at trial which included eighteen witnesses presented by the plaintiffs to demonstrate the viability of gay marriage.  The defense presented only two witnesses and relied upon Supreme Court precedent and the idea that gay marriage is a social experiment with unknown consequences.

Judge Walker opined that marriage is a matter of civil law, not a religious determination and found that “Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus toward gays and lesbians or simply a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. The Constitution cannot control private biases, but neither can it tolerate them. …”

He further found that,

”The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. …

”Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. …”

One of the most interesting aspects of this case is that people were not originally expecting  Judge Walker to conduct the  lengthy trial that he did. The trial afforded him the ability to write an opinion that applied the appropriate constitutional standard to the lengthy factual record amassed.   Appellate courts do not revisit the facts other than to determine whether the trial judge appropriately applied the law.  Judge Walker wrote a 136 page opinion and carefully and explicitly applied the law to the facts….

The plaintiffs are confident that the decision will ultimately be upheld while the defendants have no doubt that the decision will be reversed.  Thus, this case  not only  reflects  one  of the major civil rights issue of the day, but also is a prime example of the role of the judicial system to apply the rule of law and “calmly” decide the passionate issues of our times.

Focus on the Children? Senator Graham’s Immigration Solution and the 14th Amendment August 12, 2010

Posted by legalethicsemporium in Immigration, Law, Ethics & Society.
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Another spark has been thrown into the immigration debate of late as Senator Lindsey Graham has proposed to amend the 14th Amendment of the Constitution to delete the provision that provides citizenship for everyone born in this country.   The discussion generated by his controversial position has been further fueled by the release of statistics from the Pew Hispanic Center indicating that there are approximately four million children in the United States whose parents are undocumented immigrants.

There is no doubt that our country has allowed millions of undocumented immigrants to reside in our country and there are statistics to support both the benefit of undocumented workers to our economy and other statistics that demonstrate the burden placed on school systems, hospitals, the criminal justice system and other institutions in our society.

However, the central question in the current debate is whether amending the Constitution to prevent birthright citizenship is a viable solution.  First of all, let’s note that it is a virtual impossibility to amend the Constitution. Initiating an amendment to the Constitution in Congress requires approval from two-thirds of both the House and Senate and then the  proposed  amendment has to be ratified by at least three-fourths of the states.  The last significant amendment occurred about 40 years ago when the voting age was lowered to 18 years old.  This amendment was accomplished in reaction to the Viet Nam War because thousands of young soldiers were being drafted and dying in an unpopular war; they had been old enough to fight, but not to vote.

So, most Constitutional scholars would probably tell you that an amendment is not going to happen.  The fact that politicians and advocacy groups are parsing the wording and historical context of the 14 Amendment (i.e. that it was enacted to assure that the children of freed slaves would be citizens and that we didn’t have any immigration laws in 1868 as opposed it is central to our concept of equality for all) appears to be unproductive rhetoric filling the airwaves and internet.

And, let’s assume for a minute that we could deny birthright citizenship to all babies that have been born to illegal immigrants…..What do we accomplish?  Well, to begin with it appears that we will increase our undocumented population by another four million people.  What if we just say “no more.”  Okay, so we have four million children that will remain citizens and will “no more” prevent undocumented people already here from having children or prevent more people from illegally arriving and/or staying in our country?

These are the questions that remain unanswered except by conjecture and political rhetoric.   Anecdotal evidence and Pew Center statistics suggests that people come here primarily for economic reasons and  generally to improve their living conditions, not necessarily to have children.  It is undisputed by folks on both sides of the issues that our immigration system is in need of major reform—Query whether focusing on denying birthright citizenship and attempting to amend a central provision of our Constitution that provides equality to all is the most productive, efficient, American route to travel.

A Mosque on High? Constitutional Rights vs Moral Indignition August 5, 2010

Posted by legalethicsemporium in Law, Ethics & Society, Religion.
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This week a New York City Commission voted 9-0 to deny a 19th century building historic status thereby paving the way for construction of an Islamic community center and mosque a “stone’s throw” away from the 9/11’s ground zero location.  It is interesting to note that the Commission did not explicitly evaluate the proposed Islamic Center—-but many others have passionately reacted to it.

Mayor Bloomberg is pleading for  religious tolerance and  has said that, “The attack was an act of war — and our first responders defended not only our city but also our country and our Constitution…We do not honor their lives by denying the very constitutional rights they died protecting. We honor their lives by defending those rights — and the freedoms the terrorists attacked.”

Other political figures such as Newt Gingrich,  Sarah Palin, and gubernatorial candidate Rick Lazio have openly opposed the project.  They are joined by some of the families of those who died in the attack on the World Trade Center who feel that the Mosque would exist as an ongoing proverbial slap in the face.  In fact,  The American  Center for Law and Justice, a conservative advocacy group founded by the Reverend Pat Robertson, has filed suit attempting to prevent the project from moving forward.

The issue is somewhat reminiscent of the 1970’s dispute in which the town of Skokie, Illinois, home to a large number of holocaust survivors, sought to prevent a Neo-Nazi group from parading in front of the Skokie town hall.  Skokie lost that battle in the Supreme Court as the Nazi’s were represented by  the American Civil Liberties Union with an able Jewish lawyer arguing the case. (The ACLU lost a significant number of members over its defense of the First Amendment in that context.)  Ultimately, the Nazi group never marched in Skokie claiming that its preferred alternate site had become available, while others asserted that the Nazi’s feared for their lives as the tenor of the dispute had reached a fevered pitch both locally and nationally.

Which brings us to the ultimate question:  Is there ever a situation in which our moral sensitivity should trump our Constitutional rights?  The Anti-Defamation League, who actively seeks the prevention of hate crimes, has opposed the location of the mosque and stated, “Proponents of the Islamic Center may have every right to build at this site, and may even have chosen the site to send a positive message about Islam.  The bigotry some have expressed in attacking them is unfair, and wrong.  But ultimately this is not a question of rights, but a question of what is right.  In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain – unnecessarily – and that is not right.”

This is just the beginning of the debate, as lawsuits will proceed and questions will be asked about the details of the funding for the project, the design, the purpose, etc.  The Constitution upheld the rights of the Nazi’s to assemble in a terrified community of holocaust survivors and is now at the cornerstone of the debate over the religious freedom of those who want to build a mosque and Islamic Center in the shadow of ground zero.  The Constitution embodies the basic freedoms upon which our democracy has prospered.  It provides everyone with fundamental rights, but also allows individuals the discretion to limit their own rights in deference to the sensitivities of others.

The debate about the location of the mosque exemplifies the value of free speech in our society.  The issues are being openly aired and passionately discussed. However, the parties to the debate are currently at a stand-off.  So, the question remains who will “stand down” and why?

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