The wicked flee when no man pursueth: but the righteous are bold as a lion. Proverbs 28:1
The Abolition of Marriage by the Bench: A Judicial
Assault on Federalism and Family
The Imminent Death of Small Banks The Greatest Gift Kelly’s Law, Roe v. Wade and Wyoming PLUS: Focus on Student Organizations Good Laws unto the Great Commission
Dean’s Corner
LIBERT Y LEGAL JOURNAL | SPRING 2014
THE
CEL EBR AT I N G
TEN YEARS and LOOKING TO
THE FUTURE
T
he year 2014 marks a major milestone in the history of Liberty University School of Law. The inaugural class began in August 2004, becoming the first graduating class in 2007. In just ten short years, the law school has begun to have a significant impact on law and culture. When our founder, Dr. Jerry Falwell, started Liberty University in 1971, he envisioned the first professional school to be a law school. That vision became reality ten years ago. He was looking forward to the first graduating class in May 2007, but on May 15, the Tuesday of the week of graduation, Dr. Falwell went home to be with the Lord. His last words reflect his interest in the law school. The last Falwell Confidential email featured twins Megan and Mandy Chapman and their story about Megan being told she could not pray at their high school graduation. I had the pleasure of legally representing the Chapman twins through Liberty Counsel. Instead of praying at graduation, Megan shared her personal testimony of her relationship to Jesus Christ. Her story went international. I introduced the twins to Dr. Falwell and he gave them both scholarships to attend Liberty. At the time Dr. Falwell wrote the email, the twins were enrolled in Liberty University. Megan went on to graduate from the law school.
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Dr. Falwell’s last National Liberty Journal featured a photo of him on the front cover with the Chapman twins, over which the headline read, “Silence is Not an Option.” The last TV interview was with Christiane Amanpour of CNN for the two-hour documentary titled, “God’s Christian Warriors.” This documentary, which won international awards, featured the law school. And, finally, the last print article was with the Chicago Tribune, which also featured the law school. In the article Dr. Falwell spoke of his vision for how the law school would positively impact the culture. Dr. Falwell was not interested in training bystanders. He wanted to train Champions for Christ to impact every area of life and the culture. Ten years after the law school opened, and only seven years after conferring degrees upon the inaugural class, Liberty now has its first alumnus serving as a judge. Will Roach II, a member of that first graduating class, was elected as a state court judge in Tennessee. Liberty has had many graduates clerk with state and federal judges. Judge Roach is the first of many state and federal judges to come from Liberty Law. Liberty graduates are employed in a wide variety of professions. Having been trained in the context of the Christian intellectual tradition and worldview and the unique skills program at the law school, these graduates are making their mark in every area. The trophies for regional and national championships are too numerous to list. The law school has won scores of them, including national championships in Moot Court, Alternative Dispute Resolution and Client Counseling, and Trial and Arbitration. Over the next ten years the law school will build upon the firm foundation laid during the first ten. Dr. Falwell always said, “If it’s Christian, it ought to be better.” The administration, faculty, and staff are committed to excellence. We intend to impact the world and to restore the foundations for the rule of law based upon the Western legal and Christian intellectual traditions. Our vision is big, but we serve a God with whom nothing is impossible.
Mathew D. Staver Dean and Professor of Law Vice President, Liberty University Director of the Liberty Center for Law and Policy 3
LIBERT Y LEGAL JOURNAL | SPRING 2014
“
G
o on doing with your pen what in other times was done with the sword.” That is what Thomas Jefferson said to Thomas Paine about Common Sense. It seems cliché to say that the most powerful weapon a person can wield is a pen, but President Jefferson’s statement rings true now more than ever before. In this era of social media where words are typed and posted without a second thought, there are those among us who still understand the power of words. The articles in this issue of the Liberty Legal Journal discuss a range of topics that were submitted by individual authors along with authors working together with student organizations. As the theme of this issue, Proverbs 28:1 states, “The wicked flee when no man pursueth: but the righteous are bold as a lion.” The authors boldly state what they feel needs to be stated. This issue also includes several articles that were written by students for their student organizations. These articles reveal that students are not just writing what needs to be written, but are also busy organizing events at the law school to educate on issues such as child abuse awareness and understanding the role of faith in the business world. All students are allowed and encouraged to attend these events, and many have been opened to the community. As such, people outside of the law school have the opportunity to see what is being taught at Liberty University School of Law. One of the first things I have personally learned here at the School of Law is that successful attorneys are wordsmiths. That is why I have taken the time to write these few words. The professors at this law school have taught me that a proper use of words can win a case, and a poor choice of words can cost you fines, clients, or even your license. Most importantly, the professors have taught me that a poor choice of words can cost you your reputation, even if the words are allowed by ethical standards. I believe that all authors who submit articles to the Journal for publication understand the power of words. The Liberty Legal Journal is a student-run publication. The Journal includes articles from Liberty University School of Law students, faculty, and alumni. The editorial board of this issue consists of some of the hardest working individuals I know, and I thank each one for their dedication and hard work. I also thank the faculty advisors for their time outside of the classroom sharing wisdom and guidance in ensuring this issue was published on time. I encourage all students, alumni, and faculty to submit articles for publication in future editions of the Liberty Legal Journal, so that you can “go on doing with your pen what in other times was done with the sword.”
Michael Sharp Editor-in-Chief 4
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STAFF
Journal TEAM
MEET THE LEFT TO RIGHT
Molly-Catherine K. Goodson, Michael Sharp, Kayla Bramnick, Kayla Johnson, Mia Yugo
EDITOR-IN-CHIEF Michael Sharp
FACULTY ADVISORS Judge Paul M. Spinden, Professor Rodney D. Chrisman
To contact the editor, please email: Michael Sharp at mdsharp@liberty.edu
MANAGING EDITOR Molly-Catherine K. Goodson
ARTICLES EDITOR Kayla Johnson
STUDENT WORKS EDITOR
Liberty University School of Law
Mia Yugo
1971 University Blvd. Lynchburg, Va. 24515
FACULTY WORKS EDITOR
Law.Liberty.edu (434) 592-5300 law@liberty.edu
Kayla Bramnick
CONTRIBUTING PHOTOGRAPHERS Joel Coleman, David Thompson
LAYOUT Rachel Dugan 5
LIBERT Y LEGAL JOURNAL | SPRING 2014
CONTRIBUTORS JOSH DAWSON is a third-year law student and serves as the Articles and Book Review Editor for Liberty University School of Law’s Law Review. His article “The Imminent Death of Small Banks,” enlightens readers with a discussion of small banks through a biblical worldview.
MATTHEW MIHELIC graduated from Liberty University Law School in May 2013. Since receiving his Juris Doctorate, he has traveled to various nations in Africa to preach the Gospel. In his article, “Good Laws unto the Great Commission,” Mr. Mihelic encourages readers to understand and seek to fulfill the call of God to preach the Gospel. KAYLA BRAMNICK is a third-year law student. She is the Faculty Works Editor of the Liberty Legal Journal and serves on the Moot Court Board. Her article, “Honoring the King” challenges readers to honor authority in both their speech and actions.
JOSHUA PEARCE is a third-year law student. He serves on the board for the Business and Transactions Law Society and is a member of the Negotiations Team. He co-authored “Fulfilling the Great Commission through Business and Law.” ANDREW GAY graduated from Liberty University School of Law in May 2014. He co-authored “Fulfilling the Great Commission through Business and Law,” which offers a look into the First Annual Faith in Business Talks hosted by the Business and Transactions Law Society. MICHAEL VARNELL is a member of Liberty University School of Law’s class of 2014. He participated in the Constitutional Litigation Clinic and was the Treasurer of Liberty University School of Law’s chapter of the Federalist Society from 2013-2014. His article, “Law and Religion: A Legendary Former Federal Judge Visits Liberty University School of Law,” recounts Judge Arnold’s recent visit to Liberty University School of Law and discusses aspects of the life of Judge Arnold and his brother, the late Richard Arnold who was also a federal judge. MIA YUGO is a second-year law student. She is the Student Works Editor of the Liberty Legal Journal. Her article, “The Abolition of Marriage by the Bench: A Judicial Assault on Federalism and Family,” broaches a contentious current affair for the Commonwealth of Virginia. ADAM SZYSZKOWSKI graduated from Liberty University School of Law in May 2014. During his law school career, he served as the Managing Editor of the Liberty Legal Journal. In “The Landmark Immigration Case You May Never Have Heard About … And May Never Hear About,” Mr. Szyszkowski sheds light on current critical legal decisions regarding immigration law.
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BARBARA MASSIE MOULY is an Assistant Professor of Law at Liberty University School of Law. Professor Mouly obtained her Juris Doctorate from George Mason University. She teaches Torts and Lawyering Skills. In her article, “Restitution and Reform,” Professor Mouly explores the concepts of tort reform and damage caps from a Christian worldview. MICHAEL D. SHARP, M.D.Y. obtained his Master of Arts in Diplomacy from Norwich University, and he is a third-year law student. He is the current Editor-in-Chief of the Liberty Legal Journal and a member of Liberty University School of Law’s Trial Team. His article, “The Peacemaker,” provides a Christian law enforcement officer’s perspective on the breakdown in communication between law enforcement and the rest of the legal community. TORY L. LUCAS is an Associate Professor of Law at Liberty University School of Law. Professor Lucas graduated summa cum laude with his Juris Doctorate from Creighton University School of Law. He teaches Wills, Trusts, and Estates, Property I and II, and Federal Jurisdiction. His article, “The Greatest Gift,” explores parallels between the law of gifts and the biblical passage which is known as the keystone of the Christian faith: John 3:16. MELANIE MIGLIACCIO graduated from Liberty University Law School in May 2014. While a student, she was the Symposium Editor for Liberty University School of Law’s Law Review. She also was the 2013 champion of the law school’s 2L/3L Moot Court Tournament. She authors two articles, “A Third Amendment Constitutional Challenge: A Chance to Reassess the Balance Between Liberty and Security” and “Under Fire: The Right to Keep and Bear Arms – Liberty University Law Review’s 2013 Symposium.” BENJAMIN BOYD is a member of Liberty University School of Law’s class of 2010. He serves as Staff Attorney for Chief Justice Roy S. Moore of the Alabama Supreme Court. His article, “Kelly’s Law, Roe v. Wade and Wyoming,” provides a historical view of Wyoming’s feticide law, considers Wyoming’s efforts to protect women and unborn children, and examines Kelly’s Law. MOLLY-CATHERINE K. GOODSON is a third-year law student, President of the Student Bar Association, and the Managing Editor of the Liberty Legal Journal. As part of Liberty University’s dual degree program, she is pursuing a J.D. and Masters of Arts in Human Services: Children, Families, and the Law. She authors two articles,“Child Abuse Awareness Week: A Voice for the Voiceless” and“Valuable and Vulnerable: A Child Abuse Survivors Testimony in the Courtroom.” These articles focus on using a multi-faceted approach to raising awareness on child abuse in the legal field. BASYLE TCHIVIDJIAN is an Associate Professor of Law at Liberty University School of Law. Professor Tchividjian obtained his Juris Doctorate from Cumberland School of Law at Samford University. He teaches Criminal Law, Criminal Procedure, and Child Abuse and the Law. In his article,“Michael Reagan: Shining Light and Breaking Hope into the Darkness of Child Sexual Abuse,” Professor Tchividjian gives a brief summary of Michael Reagan’s harrowing journey from a child sexual abuse victim to a rescued and beautiful child of God.
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CONTENTS
FEATURED ARTICLES
8 ABOLITION OF 38 THE MARRIAGE BY THE BENCH THE IMMINENT DEATH OF SMALL BANKS By Joshua C. Dawson
11
> RESTITUTION AND REFORM
A Judicial Assault on Federalism and Family
By Barbara Massie Mouly
By Mia R. Yugo | Edited by Sean T. Maguire
14
> A THIRD AMENDMENT CONSTITUTIONAL CHALLENGE:
A Chance to Reassess the Balance Between Liberty and Security
By Melanie Migliaccio
18
> THE PEACEMAKER
By Michael D. Sharp, MDY
21
> GOOD LAWS UNTO THE GREAT COMMISSION
By Matthew Mihelic
28
> HONORING THE KING
24 34
THE GREATEST GIFT By Tory L. Lucas
KELLY’S LAW, ROE V. WADE AND WYOMING By Benjamin Boyd
By Kayla Bramnick
31 > THE LANDMARK IMMIGRATION CASE YOU MAY NEVER HAVE HEARD ABOUT... (...and may never hear about)
42
> UNDER FIRE: The Right to Keep and Bear Arms | Liberty University Law Review’s 2013 Symposium
44
By Adam Szyszkowski By Melanie Migliaccio
> FULFILLING THE GREAT COMMISSION THROUGH BUSINESS AND LAW: A Review of the First
Annual Faith in Business Talks
By Joshua Pearce and Andrew Gay
46
> LAW AND RELIGION: A Legendary Former Federal Judge Visits Liberty University School of Law
49
> CHILD ABUSE AWARENESS WEEK: A Voice for the Voiceless
By Michael Varnell By Molly-Catherine K. Goodson
51
> MICHAEL REAGAN: Shining Light and Bringing Hope into the Darkness of Childhood Sexual Abuses
53
> VALUABLE AND VULNERABLE: A Child Abuse Survivor’s Testimony in the Courtroom
By Basyle Tchividjian By Molly-Catherine K. Goodson 7
LIBERT Y LEGAL JOURNAL | SPRING 2014
S
mall banks are built on the premise that they are from the community and for the community. They must cater to the local market or risk becoming extinct. They also cater to their customers with a personal touch to assure them that their hard-earned money will be in good hands. Unfortunately, these types of establishments are currently running the risk of being completely eliminated within the next ten years.
In 2010, Congress enacted the Dodd-Frank Act (Act).1 Supposedly, this Act2 was in response to the financial crisis of the late 2000s. Part of the initiative of the Act was to eradicate the notion of “too big to fail� by creating regulations that made it more expensive to be a big bank.3 Theoretically, this should have created incentives for the big banks to either limit their size or stabilize their growth; however, the last four years have shown the exact opposite to be true. 8
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Currently, there are 29 % more big banks than there were in 2010, and there are 24 % fewer small banks.4 There are two theories as to why this is happening. First, the regulations are making compliance costs so exorbitant that small banks are unable to remain solvent.5 Second, the Act’s Section 613 preempts state laws limiting de novo bank branching, thus reducing barriers for big banks to enter those particular states at less cost than before.6 The first theory has some bite. A study of the Washington, D.C. area banks and credit unions revealed that more than a dozen of these establishments have merged with each other over the past couple of years.7 One cited reason for these mergers is “heightened regulation” under the Act.8 Additionally, in 2014, The Mercatus Center at George Mason University released a study premised on how small banks are fairing under the Act.9 This study revealed that over 80 % of small banks saw their compliance costs increase by more than 5 % since the enactment of the Act.10 More than 60 % of small banks stated that changes to the mortgage regulations will have a significant negative impact on their earnings and more than 90 % stated that changes in mortgage regulations will have at least some negative impact on their earnings.11 These studies reveal the true negative impact that the Act has had and is continuing to have on small banks. The second theory is that Section 613 of the Act preempts state laws that limit or prohibit interstate de novo banking. When the Act was enacted in 2010, there were 20 states that had some sort of prohibition on interstate de novo banking.12 The typical interstate de novo banking prohibition consisted of prohibiting banks from expanding across state lines except through exotic avenues such as “chartering a subsidiary in another state or acquiring an out-of-state bank to convert to a subsidiary of the parent bank.”13 The Act under Section 613 preempts these state laws through allowing de novo branches on an interstate basis “regardless of state law.”14 This effectively
lowers the barriers for big banks to set up shop in states that were too costly to enter into prior to the Act because of de novo branching restrictions. It can be fairly assumed that this preemption has promoted the increase in the number of big banks through mergers and acquisitions of small banks. The following imagery should capture how the two theories are dragging down small banks. Imagine a man in the middle of the ocean (he is the small bank). He is swimming along with relative ease and then a giant anchor is placed on his right arm, restricting his movement (the exorbitant costs of compliance with the Dodd-Frank Act). To make matters worse for the poor guy, another anchor, perhaps a bit smaller than the first, is placed on his left arm (reduced barriers for big banks to enter into states).15 The man is left with a dilemma: he can either join forces with someone of greater strength to counterbalance the weight of the anchors and “survive” (merge with another bank or financial institution) or he can cease to exist by allowing the anchors to drag him to the bottom of the ocean (become insolvent as an institution). We, as Christians, should be concerned about this. Localism allows families, whether Christian or non-Christian, to control the advocacy of causes within the local banks. A banking structure that favors nationalism takes all control out of the hands of the local community. For example, Bank of America supports the Lesbian, Gay, Bisexual, and Transgender (LGBT) agenda and other such causes that are contrary to a biblical worldview.16 It will not matter to Bank of America if a particular community is predominantly Christian or not, it will still advocate for the causes that it deems to be in the best interest of the company. Whereas, if a local bank was trying to decide whether to advocate for the LGBT agenda or not, the local community will have a great say in that decision. If the local bank acts contrary to the beliefs of the local community, then it will find itself out of business. This creates a strong reason for the local bank to act in accordance with the local moral compass. 9
LIBERT Y LEGAL JOURNAL | SPRING 2014
Another important reason for Christians to be concerned about the destruction of the local community bank is that depositing funds into such a local bank will ensure that most of the money remains local. Due to the connection with the local economy, local community banks are more likely to contribute funds to local education, local charities, and other local interests. Instead of the money going to some faraway city to help build skyscrapers, the money will stay local and help sustain a healthy local economy, such as investing in local businesses. This in turn, will create local jobs, which will provide finances to support the local family unit. In conclusion, the Dodd-Frank Act makes it virtually impossible for small banks to compete with larger banks because of the exorbitant compliance costs. We need to be adamant about establishing appropriate reforms that will make the Dodd-Frank Act more business friendly to small banks. If we can reform, we might be able to save the local community bank.
1 Dodd-Frank, Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203 (2010).
2 Tom Easton on Dodd-Frank: A Terrible Law, Reason.com (May 12, 2012), http://reason.com/ blog/2012/05/12/tom-easton-on-dodd-frank-a-terriblelaw (Video).
3 Neil Irwin, Did Dodd-Frank end Too Big to Fail? It
depends what you mean by ‘end.’, The Washington Post (Feb. 27, 2014, 9:09PM), http://www. washingtonpost.com/blogs/wonkblog/wp/2013/12/06/ did-dodd-frank-end-too-big-to-fail-it-depends-whatyou-mean-by-end/.
4 Veronique De Rugy, Since 2000, There Are 29
Percent More Big Banks and 24 Percent Fewer Small Banks, National Review Online (Feb. 27, 2014, 9:09PM), http://www.nationalreview.com/ corner/371907/2000-there-are-29-percent-more-bigbanks-and-24-percent-fewer-small-banks-veroniquede?utm_source=PANTHEON_STRIPPED&utm_ medium=PANTHEON_STRIPPED.
5 Todd Zywicki, Survey Find Dodd-Frank Is Good For
Lawyers, Not So Much For Consumers, Small Banks, The Washington Post (Feb. 27, 2014, 9:09PM), http:// www.washingtonpost.com/news/volokh-conspiracy/
10
wp/2014/02/27/survey-finds-dodd-frank-is-good-forlawyers-not-so-much-for-consumers-small-banks/.
6 Mick Grasmick, The Dodd-Frank Act Will Open
All States To Interstate De Novo Branching, Association Of Corporate Counsel (Feb 27th, 2014, 9:09PM), http://www.lexology.com/library/detail. aspx?g=45e7af9b-1e4c-465b-a7d7-471041bf5415.
7 Abha Bhattarai and Catherine Ho, Four Years Into
Dodd-Frank, Local Banks Say This Is The Year They’ll Feel The Most Impact, The Washington Post, (Feb 27th, 2014, 9:09PM), http://www.washingtonpost. com/business/capitalbusiness/four-years-into-doddfrank-local-banks-say-this-is-the-year-theyll-feel-themost-impact/2014/02/07/12c7ca48-877e-11e3-a5bd844629433ba3_story.html.
8 Id. 9 Hester Peirce, Ian Robinson, and Thomas Stratmann, How Are Small Banks Faring Under Dodd-Frank?, Mercatus Center: George Mason University (Feb. 2014).
10 Id. 11 Id. 12 Debra Taylor Lewis and Daniel R. Hugunine, Unimpeded Branching Power? The Expansion of Interstate De Novo Bank Branching, Banking Traditions: The Magazine Of The Community Bankers Association Of Alabama (2010), http:// www.balch.com/files/Publication/ba0ecec8bb87-4b13-9632-0270406925e0/Presentation/ PublicationAttachment/35766e11-9016-418a-a600067ca982fa1b/Hugunine142011.pdf.
13 Id. 14 Id. 15 The anchor analogy is meant to paint a picture on how the two theories can effectively destroy small banks. The two anchors need to be viewed in chronological order. The exorbitant costs of compliance with Dodd-Frank will put a small bank into financial trouble. Because of that financial trouble it is likely that they will be unable to fight off any competing bank that has the capacity to comply with the Act. Then throw into the mix the fact that barriers for big banks to enter states have been reduced. This creates an environment where hostile takeovers, standard acquisitions, and mergers are more likely. Making the traditional terminology of “local community bank” a term of the past.
16 HUMAN RIGHTS CAMPAIGN, Bank of America Debit Card (May 14, 2014, 10:27AM), http://www.hrc. org/support/get-an-hrc-debit-card.
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uch has been spoken and written about “tort reform.” This popular term refers to damage caps and other measures designed to limit the amount of damages in tort personal injury cases.1
Tort compensatory damages typically include payments for lost wages, medical expenses, and pain and suffering. Damages for lost wages and medical expenses, often called “economic damages,” are documented with numerical proof such as wage statements and medical bills. Damages for pain and suffering are often called “non-economic damages.” “Non-economic damages” are typically documented by testimony of the injured person, by testimony of others who have observed the injured person, by physical evidence such as photographs, and sometimes by demonstrative evidence presented in a “per diem” closing argument.2 11
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A state legislature should understand the purpose of tort damages if it undertakes to reform tort law with damage caps. The traditional purpose of compensatory damages in tort cases is restitution: to restore the injured person to the position he was in before the injury, to the extent that money damages can do so.
Closely related to God’s work of healing is His work of restoration. Joel, prophesying at a time when Israel had been ravaged by other nations, spoke on God’s behalf this promise to Israel: “I will restore to you the years that the swarming locust has eaten.”12 An essential part of God’s nature is to be a healer and restorer. His work of healing and restoration, unlike ours, is not a remedy for wrongdoing. Nevertheless it stands to reason that he would expect us to heal and restore when we have caused injury to others.13
The law of the nation of Israel in the Old Testament shows a Biblical purpose for personal injury damages. That law provided that the person who strikes another and injures him “shall . . . pay for the loss of his time, What would constitute a fair monetary remedy for and shall provide for him to be thoroughly healed.”3 personal injury? The law in Exodus 21:19 required The Hebrew word for “healed” in Scripture is rapha, the person who caused injury to which can be translated “to mend, to Healing and another to pay the injured person for cure, to cause to heal; physician; repair, lost wages and for damages such as restoration are an repair thoroughly; make whole.”4 Rapha medical expenses. Whether this law important part of speaks of a complete restoration in that also required payment for physical God’s nature and its meaning conveys a thoroughness of and emotional pain resulting from the character. the healing, and a result that is “whole.” injury is not specifically addressed in Healing and restoration are an important part this Scripture. However, the concept of thorough of God’s nature and character. The word rapha, healing embodied in rapha arguably encompasses which is used in Exodus 21:19 to describe the both physical and emotional healing. requirement of restitution for personal injury, is The Scriptures also speak of fairness in the measure also used in numerous Scriptures to portray God of things. For example, one proverb states that as a healer. God identified Himself to Israel as “the “honest weights and scales are the Lord’s.”14 In Lord who heals you.”5 David cried out, “O Lord, order to measure lost wages and medical expenses, heal me, for my bones are troubled.”6 Jeremiah a court must have accurate wage statements and pleaded with God: “Heal me, O Lord, and I shall be medical bills. If injuries are permanent, the court healed.”7 Jeremiah conveyed a promise from God must also have honest estimates of future wages to Israel: “For I will restore health to you and heal that were expected before the injury and the costs you of your wounds.”8 Hosea, speaking of God’s of future medical procedures that are necessitated dual roles of judge and healer, said, “For He has by the injury. torn, and He will heal us.”9 Isaiah, prophesying of the suffering and death of Jesus, said, “And by His The measurement of pain and suffering damages, stripes we are healed.”10 Each of these Scriptures unlike measurement of wages and medical expenses, uses the word rapha. is necessarily quite subjective. Because pain and While Jesus was operating in His earthly ministry, He performed extraordinary works of healing. “He healed many who were sick with various diseases.”11 He was the great Physician (Rapha) who demonstrated in a miraculous way the manifestation of God’s healing power. 12
suffering are hard to measure, the evidence of these damages may be speculative and perhaps distorted. The command to make restitution is certainly not an invitation to injured persons to skew the evidence of their damages so as to gain more than they deserve. And it certainly does not excuse frivolous or
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fraudulent claims for pain and suffering. Reports of such tactics and claims fuel the fire for “tort reform,” that is, legislative action to curb excessively high damage awards. Before imposing a cap on all awards for personal injury, legislators should address whether judicial methods of controlling unfair damage awards are adequate. Legislators should not overlook the crucial role that judges play in overseeing evidence at trial and in reducing damage awards. Judges have the authority to control highly inflammatory evidence of pain and suffering by excluding evidence that is more prejudicial than probative. Ideally, the regular use of this authority prevents the use of evidence that would influence jurors to base damage awards on emotion, while leaving to juries their appointed role of determining the amount of damages. Judges also have the discretion to refuse to allow the “per diem” argument in closing arguments at trials. Perhaps a more strict exclusion of “per diem” evidence in the court room would alleviate the need for legislative action to regulate pain and suffering damages.15 Furthermore, judges have the power to reduce excessive damage awards in individual cases, using the procedural device of remittitur. Perhaps a rigorous use of remittitur in specific cases would obviate the need for damage caps in all cases.
2 A typical “per diem” argument suggests a numerical dollar amount for a day of pain and suffering and then multiplies that amount by the number of days the pain and suffering has lasted and is expected to last. 3 Exodus 21:19. Scriptural references are to the New King James version of the Bible unless otherwise indicated. 4 The New Strong’s Exhaustive Concordance of the Bible, Hebrew and Chaldee Dictionary, 110 (1984). Rapha can be either a noun or a verb; as seen above, one of its meanings is “physician,” the person who works to heal another. 5 Exodus 15:26. 6 Psalm 6:2. 7 Jeremiah 17:14. 8 Jeremiah 30:17. 9 Hosea 6:1. 10 Isaiah 53:5. This verse is part of a set of verses about the Atonement. One result of the Atonement is healing from the wounds caused by sin. 11 Mark 1:34. In the first eight chapters of Mark, God’s nature as a healer is displayed through numerous miracles of healing. 12 Joel 2:25. 13 One verse in the New Testament exhorts believers in Jesus to “be imitators of God, as dear children.” Ephesians 5:1. 14 Proverbs 16:11. 15 See Joseph H. King, Jr., “Counting Angels and Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages,” 71 Tenn. L. Rev. 1 (2003).
In deciding whether to create damage caps, legislators should carefully consider both the requirement for restitution and the need for fair and honest measures of damages. The Scriptures provide sound wisdom as to both.
1 See, for example, Va. Code Ann. 8.01-581.15 (damage cap on medical malpractice verdicts); Md Cts. & Jud. Proc. Code Ann. 11-108 (damage cap on noneconomic damages). Other statutes cap punitive damages. See, for example, Va. Code Ann. 8.01-38.1 (damage cap on punitive damages in all types of cases). This article addresses compensatory damages. 13
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t is understandable that Americans might not be familiar with the Third Amendment. There has never been a Supreme Court case interpreting it. No one has created a bumper sticker extoling its importance. In two hundred years, no group has marched in protest because their Third Amendment rights have been violated. But the filing of a recent civil suit in Nevada reminds us that the Third Amendment might not be an obsolete Amendment after all, and Americans should pay attention to a rising threat to their liberty. Snuggled between the Second Amendment right to keep and bear arms and the Fourth Amendment right to be free from unreasonable searches of one’s home, person, and belongings is the Third Amendment’s provision: “No soldier shall, in time of peace be quartered in any house, without the consent of the Owner. . . ” The Mitchell family, living in Henderson, Nevada, filed suit against several police organizations, including the City of Henderson Police Department, alleging multiple violations of the Mitchells’ constitutional rights, including their rights under the Third Amendment.1
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The amended complaint alleges that on the Whether these alleged actions would be sufficient to morning of July 10, 2011, the police responded to constitute “quartering” in peace time and whether an alleged domestic disturbance in the Mitchells’ the police officers might constitute “soldiers” for neighborhood. The City of Henderson police were Third Amendment purposes is unsettled.4 But the alleged actions taken by the police suggest that a look joined by police from other jurisdictions, and a at the evolution of law enforcement and its potential SWAT team took up a position near the house. Mr. endangerment of personal rights is overdue. and Mrs. Mitchell owned a home near the target house, and their adult son owned a home across the The Third Amendment’s placement in the street. The Mitchells became concerned about the Constitution was certainly purposeful. It forbids conduct of the police and began taking pictures of in peacetime and restricts in wartime the invasion the police activity, which they allege resulted in the of the home by governmental soldiers. The Fourth officers continuously pointing loaded firearms at Amendment further protects citizens from invasion them through the windows of their of person, home, and effects through home. A police officer called the son The Third Amendment’s unreasonable searches, seizures, and and asked to use the son’s home to placement in the arrests.5 Further, one federal court gain a tactical advantage over the Constitution was has described the Third Amendment target home. The son refused. At that certainly purposeful. It as “first cousin to the Fifth” point, the police allegedly conspired forbids in peacetime and Amendment because the use of the to demand entrance to the home and house by soldiers is the “confiscating determined that if the son refused to restricts in wartime the [of] private property for public allow them to occupy his home, they invasion of the home by purposes without compensation.”6 governmental soldiers. would arrest him for obstructing a For most of our nation’s history, police officer.2 The police allegedly law enforcement has been primarily local, and it knocked on the son’s door and then smashed the is black-letter law that the Constitution denies to door open with a metal battering ram.3 With no the federal government a national police power. warrant and allegedly with no probable cause, the Nevertheless, in the last decade, law enforcement police arrested the son, searched his home, and then has changed. occupied it as an observation post. Meanwhile, an officer convinced Mr. Mitchell, allegedly by deceit, to leave his home. When Mr. Mitchell attempted to return to his home, he was arrested for obstructing a police officer. Mrs. Mitchell was still in her home. When Mrs. Mitchell refused a demand by the officers to enter her home without a warrant, they allegedly pushed their way in, began searching, and forcibly removed Mrs. Mitchell from her home. The amended complaint alleges that when the police were occupying the Mitchell home, they left cabinet and closet doors wide open, left the outside door ajar in the Nevada heat, drank water from the Mitchells’ water dispenser, left fifteen used disposable cups in the garbage, left the refrigerator door ajar, and left mustard and mayonnaise on the kitchen floor.
First, law enforcement agencies now overlap and respond together to events. In the Mitchell case, the City of Henderson police force was supplemented by the North Las Vegas Police Department, a separate SWAT team, and possibly other law enforcement entities as well.7 A principle argument of the City of Henderson’s motion to dismiss8 was that the Mitchells can’t identify from which organization the offending officers came and thereby cannot prove that City of Henderson officers committed the alleged acts. Second, the tactics used by law enforcement today have become militarized. During the founding era, the militia consisted of all able-bodied men, who were often required to keep and bear arms. That right 15
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was not to be infringed because many Founders, especially Anti-Federalists, were concerned that the federal government could create a“select militia” that would disarm the people and oppress them.9 Today, law enforcement has become a “select militia,” often sporting military style gear and weapons. This may be a violation of Article I, Section 10, Clause 3 of the Constitution, which forbids states from “keep[ing] Troops . . . in time of Peace.”
country.”13 Thus, this office creates a federal police power designed to protect health, safety, and welfare (not just national defense)—a power not granted to the federal government in the Constitution.
In addition to the DHS-coordinated web of law enforcement, military-style SWAT teams are part of the Federal Bureau of Investigation (FBI), which has more than 1,200 SWAT and Hostage Response Team personnel, including a SWAT “Safety from external danger is the team at every one of the FBI’s 56 regional offices.14 And most powerful director of national the Transportation Security conduct. Even the ardent love of Administration, created after liberty will, after a time, give way 9/11, has a nationwide to its dictates. . . . To be more safe, web of about 50,000 law [people] at length become willing to enforcement officers under run the risk of being less free.” federal control.15
Thirty years ago, the demarcation between military and police was clear, each entity having its own mission, rules of engagement, and procedures.10 The soldier operates in time of war against enemies; the police officer operates in time of peace to protect law-abiding citizens. The soldier seeks to achieve the objective at any cost and through overwhelming force; the police officer is bound by constitutional restraints and a mission to preserve the rights, even of criminals. Police officers, however, are increasingly receiving military training and being provided with military-level weapons, and patterning their appearance, attitude, and tactics on elite military units.11 Where a local police force uses the same techniques as the military, “the difference between a militarized police force and a military force policing is nonexistent.”12
Third, added to the militarization of local law enforcement is the integration of local agencies into a federal network. The 9/11 Commission recommended, and Congress created, the Office for State and Local Law Enforcement. The purpose of the office is to “Lead the coordination of [Department of Homeland Security]-wide policies related to state, local, tribal, and territorial law enforcement’s role in preventing, preparing for, protecting against, and responding to natural disasters, acts of terrorism, and other man-made disasters within the United States; and Serve as the primary liaison between DHS and non-Federal law enforcement agencies across the 16
Certainly, “safety” stands as the primary justification for expansion of tactics, cooperation, and federal expansion of law enforcement, but Alexander Hamilton warned, “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. . . . To be more safe, [people] at length become willing to run the risk of being less free.”16 Regardless of whether the alleged militarized police tactics of the Henderson Police Department and the alleged commandeering of the Mitchells’ homes are found to constitute a violation of the Third Amendment, the incident provides an opportunity to realize just how far the local police force has become militarized and federalized. It may be that Americans are willing to run the risk of being less free for the perceived benefit of feeling safer. But such a loss of freedom should be a conscious decision made by the American people, not the result of gradual expansion of federal power and military mind-set.17
1 In an amended complaint filed on October 14, 2013 in the United States District Court of Nevada (Case # 2:13-cv-01154-APG-CWH), the Mitchells allege twenty-two claims for relief, including claims of
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unlawful search, seizure, and arrest under the Fourth and Fourteenth Amendments; use of excessive force; retaliation for speech protected under the First Amendment; malicious prosecution, abuse of process, and tort claims. 2 The amended complaint quotes the official report of one of the officers. 3 The egregious conduct alleged included the shooting of the son with pepperball rounds from close range while he was lying motionless on the floor and complying with officers’ demands; the subsequent excessively rough dragging of the son out of the residence while handcuffed and in pain, the gratuitous shooting of the son’s dog with pepperball rounds even though the dog was cowering in the corner, and the subsequent leaving of the animal outside for an extended time in 100 degree Fahrenheit temperatures with no food, water, or shelter.
gov/office-state-and-local-law-enforcement-oslle (last visited Jan. 25, 2014). 14 Tactical Operations, Federal Bureau of Investigation, http://www.fbi.gov/about-us/cirg/tactical-operations (last visited Jan. 25, 2014). 15 Our Workforce, Transportation Security Administration, http://www.tsa.gov/about-tsa/ourworkforce (last visited Jan. 25, 2014). 16 The Federalist No. 8 (Alexander Hamilton). 17 As of May 15, 2015, Mitchell et al v. City of Henderson, Nevada et al is pending trial. The most recent development is a joint motion to stay discovery.
4 The Mitchells’ other claims, for example Fourth Amendment violations, are much stronger, but this article explores the issues related to the Third Amendment claim. 5 The Second, Third, and Fourth Amendments were restrictions on the federal government, but were incorporated against the states through the Fourteenth Amendment. The Supreme Court, in McDonald v. City of Chicago, Ill., recognized the incorporation of the Third Amendment. 130 S. Ct. 3020, 3035 n.13 (2010). 6 Johnson v. United States, 208 F.R.D. 148, 151-52 (W.D. Tex. 2001) 7 The amended complaint refers to these unknown law enforcement entities as “Roe Corporations.” 8 City of Henderson’s motion to dismiss was filed November 12, 2013 as document 17. 9 District of Columbia v. Heller, 554 U.S. 570, 598 (2008). 10 See Cynthia A. Brown, J.D., Ph.D., Divided Loyalties: Ethical Challenges for America’s Law Enforcement in Post 9/11 America, 43 CASE W. RES. J. INT’L L. 651, 669 (2011), 11 Id. at 672-73 (“Police departments began purchasing military armored personnel carriers (APCs) with the assistance of homeland security funding. Some agencies are actually using these vehicles for aggressive, proactive patrol work, deploying APCs for ‘street sweeps’ in high-crime neighborhoods, manned with SWAT personnel in full paramilitary uniforms and weaponry.”) (footnotes omitted). 12 Candidus Dougherty, “Necessity Hath No Law” : Executive Power and the Posse Comitatus Act, 31 Campbell L. Rev. 1, 49 (2008). 13 The Office for State and Local Law Enforcement, Department of Homeland Security, http://www.dhs. 17
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had a feeling something bad was going to happen today.” I only remember that statement on a few occasions. It was usually when I got home late, and my wife was crying while waiting for me. Many men and women have this same experience every day all over the United States. Who are these men and women? They are the people who choose to be law enforcement officers. They come from all walks of life. They cross social, ethnic, racial, and gender lines and share a common cause.
“Blessed are the peacemakers; for they shall be called the children of God.”1 I spent a large portion of my career as a law enforcement officer knowing that the contact I would generally have with citizens would not be positive. After all, who likes to see blue lights in their rearview mirror or spend the night in jail? For the legal community outside of law enforcement, that is where the role of law enforcement ends. This is simply not the case, and an understanding of what a law enforcement officer does on a “normal”2 day is vital for the gap between law enforcement and the rest of the legal community to be bridged. 18
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On a typical day an officer could receive an because he knew who was protecting his family. emergency call that could range from a serious I also remember helping a holocaust survivor traffic accident to a triple homicide. What many recover her jewelry that she had saved during in the legal community fail to realize is that no the holocaust, and the tears she cried when she matter the type of the call, it is a call for help. It realized that she was wrong about never seeing is a shocking reality the first time a rookie officer her jewelry again. These are not the memories of responds to a call where he puts his life on the line. someone in a profession who intends for citizens For example, a “typical” domestic dispute could to have a bad day. I also remember times when include family members that are angry enough people actively tried to kill me, only because of to kill one another. The officers are thrust into what my uniform represented. Some of these a situation where individuals are armed, and if a situations go to the court system, but even when 3 crime has been committed, someone will go to jail. they do attorneys look at the black and white of From the perspective of an attorney, this is not paper. They argue whether to allow color pictures complex, but there is also a family dynamic to be into evidence, and the officers do not understand considered. The officer is arresting someone who why something seemingly that simple matters.7 lives with the victim.4 The victim will often turn These examples I provide are reasons their frustrations against the officer, for the breakdown in communication who is trying to help, and use that “When trying a case or between law enforcement and other same weapon on the officer. Weeks arguing an appeal, many members of the legal community. later in the courthouse I have often attorneys fail to realize There is a misconception that officers heard attorneys say this was “just that the facts of what love their job, and their job is to make another domestic,” and the officer happened occurred in people have a bad day. As a wise law spent that night in the hospital. less time than it took professor once said “understanding them to walk from their These types of situations are often the concept is easy. A deeper level calmed by an officer’s presence, but it of analysis is what sets you apart.”8 car to the courtroom.” It is true that most officers love is that officer’s presence in what may what they do. A cursory understanding is that be the worst day of that person’s life. “True peace is officers love making people have a bad day. A not merely the absence of tension, but the presence 5 deeper understanding is that officers love making of justice.” Dr. King was speaking about atrocities occurring on a much larger scale, but his statement their communities a safer place. This necessitates is equally applicable to officers calming chaos at making people who do not follow the law have a each call. bad day. Those with a deeper understanding see officers giving badge stickers to children in order to The first thing an officer will do when they enter show them that officers care about them and are a situation is to establish order out of chaos, or not merely there to arrest them if they are bad; as more simply phrased, create a peaceful situation. parents often tell them. The first step in the use of force continuum is officer presence.6 An officer being at a scene will The easiest way to start bridging the gap between often calm a situation. I remember walking up to a law enforcement and the rest of the legal community house one night where a group of gentlemen were is at the educational level. As a recruit, I was taught sitting. I explained that I was newly assigned to to do everything legally, and if the case was thrown the area and simply wanted to introduce myself. out of court it was the attorney’s problem. As a law One of the gentlemen told me that knowing me student, we focus on cases where the court decided by name made him feel safer in his neighborhood that an officer made a mistake, or where many 19
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believe the officer has too much power. These two approaches deepen an already wide rift between the two communities. When trying a case or arguing an appeal, many attorneys fail to realize that the facts of what happened occurred in less time than it took them to walk from their car to the courtroom. To start bridging this gap, officers should be taught by prosecutors, defense counsel, and judges in basic recruit school and in-service training on proper criminal procedure. Prosecutors are able to teach officers the proper way to do their job without violating civil rights. Defense counselors are aptly able to remind officers that their clients are also members of the community. Since defense attorneys also rely on law enforcement for safety and the safety of their families, defense attorneys can also explain that they are not trying to attack officers in court. By teaching these simple principles, attorneys will be creating a more peaceful environment between law enforcement and the legal community. A pleasant side-effect will be that better cases are brought to the court system, and efficiency in the courts will increase. Many attorneys do not understand the benefits of working with law enforcement. Attorneys will take time to train and work with law enforcement if they are taught the importance of it in law school. The bias against law enforcement easily grows in law school because many cases focus on what an officer did wrong. By focusing on what a particular officer did wrong it becomes easier to make broad generalizations that officers are power hungry and do not care about the rights of citizens. On several occasions, I had classmates ask how I was going to stand up for what an officer did in the case assigned to us for that day. I explained to them again and again that the officers in the cases we read are the exception to the profession of law enforcement, not the rule. If the legal community takes time to understand why an officer thinks the way that they do, it will make the relationship between law enforcement and the rest of the legal community that much stronger; however, it will be difficult to understand why an officer does what they do. 20
“I had a feeling something bad was going to happen today,” my wife said as she cried into her pillow. I told her I was sorry for being late, and I should have called about my late paperwork. She had peace because she believed I had been sitting at the station. I did not mention I had to be seen at the hospital earlier that night from a line of duty injury. Keeping the peace is what officers do.
1 King James Version, Matthew 5:9. 2 There is no “normal” or “typical” call. Every person is different, and how an officer responds must be tailored to the individual in the current crisis. 3 When arrest by officer without warrant is lawful. Fla 901.15(7). Law enforcement officers are trained to make arrests if there is probable cause to believe that an act of domestic violence has occurred, and the legislature has created an exception that allows officers to make warrantless arrests for misdemeanors that did not occur in the officer’s presence. 4 Domestic Violence: Definitions, Fla. 741.28 (3). 5 Stephen B. Oates, Let The Trumpet Sound: A Life of Martin Luther King, Jr. (Harper Perennial Publishers 1994). 6 The Use of Force Continuum. National Institute of Justice. (May 14, 2014), http://www.nij.gov/topics/ law-enforcement/officer-safety/use-of-force/pages/ continuum.aspx. 7 See Fed. R. Evid. 403. 8 Stephen M. Rice. Associate Professor of Law, Liberty University School of Law (2012).
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AMERICAN OPINIONS “
J
esus was not political.” Too often Christians in America find themselves tackling such misconceptions that question the significance of earthly government in the lives of those who are called to live as “citizens of heaven.” Many legal professionals contemplate, “Should my efforts be to uphold the Constitution or the Bible in the public square?” Churches in America have historically stepped on both sides of what is thought to be a fine line. The questions so frequently fought over are whether the mission of the Church involves pursuing government to fix social problems, or whether Christian involvement is the problem impeding the Great Commission. BOTH GOVERNMENT AND THE GOSPEL Pursuing good laws and the Great Commission is not an “either/or” dilemma, but a “both/and” design. This is not merely because God wills that governments establish justice for all peoples, but because He intends that all nations know the Gospel. While direct obedience to the call to make disciples belongs to the Church, God intends for good governments to create ideal social conditions for the success of Christian evangelism. The Christian call to be sojourners in the world involves the direct pursuit of righteous government and laws as a means of accomplishing the Great Commission. This principle is not in theory only. For when laws are the result of Christian influence, history has shown that the Gospel flourishes in and from those places. 21
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THE LEGAL FOUNDATION FOR THE PROTESTANT REFORMATION MARTIN LUTHER After being excommunicated from the Catholic Church, Martin Luther depended on the safety provided by civil authorities during the early years of the Protestant Reformation. German monarchs allowed Luther to carry out the work of “reforming” the doctrine of the growing Church as well as to translate the first bible into the German language. His translation literally took place in the castle fortress of a German prince. Luther’s Bible was the introduction of God’s Word to the German people and it fueled the reformation with incalculable fervor. JOHN CALVIN After being trained as a lawyer in his native France, John Calvin was forced to leave his home country because of the Catholic persecution of the French Huguenot reformers. He eventually found sanctuary outside of France in the city-state of Geneva. Because of reforms in government and peace with local authorities, Calvin was able to base his ministry out of Geneva. From Geneva, his weekly teachings were dispersed throughout Europe for years. These teachings proved to be a major force in the development of the Protestant Reformation.1 Thus, having experienced first-hand the benefits of good laws unto the Gospel mission, he considered a calling in government to be “the most sacred, and by far the most honourable, of all stations in mortal life.”2 JOHN KNOX John Knox, a former Catholic priest, spent years of his life imprisoned by Catholic monarchs following his conversion to Protestantism. After Mary Tudor became Queen of England in 1553 and began her persecution of Protestants, Knox fled to Europe where he eventually met John Calvin. He later returned to establish the Church of Scotland. When writing to the Protestant Scottish nobility in 1557, 22
Knox implored them to pursue the favor of higher rulers so that “the cause in which ye labour may be promoted, or at the least not persecuted.”3 Today, the work of the reformers echoes within every continent on earth. During its time, the Protestant Reformation sought the protection of civil governments whose rule established the peaceful conditions for the Reformation to succeed. There remains little wonder, then, why the reformers would emphasize the need for Christians to pursue good laws today. KOREA The success of Christianity in South Korea stands as one of the greatest modern examples of how good governments enable a nation to be transformed by the Gospel. The daily news reports how North Korea’s story is tragically the opposite. At the beginning of the twentieth century, Korean Christians numbered one-half of one percent of the population of Korea, and laws specifically prohibited the teaching of the Bible.4 In 1950, the oppressive dictator, Kim Il Sung, who had already killed thousands of Christians, invaded the southern part of Korea in an attempt to unite the nation under Communism. Multiple nations took sides in the three-year war that left both sides with substantial losses. While North Korea continued with its oppressive Communist regime, South Korea began anew with democratic freedoms. Now, sixty years later, South Korea is home to ten of the eleven largest mega-churches in the world. The city of Seoul, for instance, contains the world’s largest Baptist, Presbyterian, Methodist, and Pentecostal churches.5 According to the World Christian Database, onethird or more South Koreans are now Christian. With a population of forty-eight million, South Korea sends out the largest number of missionaries overseas, second only to the United States.6 South Korea currently has approximately twelve thousand
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missionaries overseas.7 This is more than double that of the United States, per capita. In contrast, North Korea currently stands as the world’s only dictatorship where the ruler is worshipped as a deity. According to Christian Solidarity Worldwide (CSW), persecution of Christians in North Korea ranks among the worst. Christians are considered public enemies and face labor imprisonment as well as execution. Most North Koreans have never met a Christian, read a Bible, or seen a church. What they know of Christianity is determined by the propaganda of the Communist government, which teaches that Christians are insane and refers to them as “crazy people.” Millions of Koreans are born, live, and die above the 38th Parallel without ever having any exposure to the truths of Jesus Christ. The glaring difference between North and South Korea is the political freedoms that the South Korean government has provided for six decades. INDIA William Carey, considered by many to be the “Father of Modern Missions,” arrived in India in 1793. Largely unbeknownst to the world, his initial missionary activity in India was illegal. Since the 1600s, the British East India Trading Company had been granted a royal monopoly on the “East Indies” and, in order to prohibit a cultural disruption, had banned all Christian missionary work in the Hindu nation. With the help of the famous abolitionist, William Wilberforce, a movement began in Parliament to see the law changed. Carey joined Wilberforce in pleading the cause of India and eventually both houses of the legislature voted to open the doors for the Gospel into India.8
which Carey laid proved to be a major step in the spiritual growth that India is now experiencing. The church in India has been forever changed from the time that one law was changed over one hundred years ago. A WORTHWHILE PURSUIT Returning to the question, “Is Jesus political?” History has proven, yes. “The government rests on His shoulders,” and laws do, in fact, have eternal consequences related to the spread of the Gospel. Any map that displays the most unreached areas of the world reveals that the final nations yet to be reached with the Gospel are also the most adverse to religious freedom. Therefore, engaging governments for the sake of the Great Commission is a Godly and worthwhile pursuit. Let no Christian lawyer think otherwise. 1 Cunninghman, Loren, The Book That Transforms Nations: The Power of the Bible to Change Any Country. YWAM Publishing: Seattle, Washington. (2007). 2 Calvin, John. Institutes of the Christian Religion, Volume 2. Lafayette, IN: Sovereign Grace Publishers, 2002. 3 Knox, John. On Rebellion. Cambridge, United Kingdom: Cambridge University Press, 1999. 4 See Cunningham, supra note 1. 5 Id. 6 See Onishi, Norimitsu. Korean Missionaries Carry the Word to Hard Places. Seoul Times. www. theseoultimes.com/ST/db/read.php?idx=1193. 7 Id. 8 Sunshine, Glen. William Carey (1761-1834). Christian Worldview Journal. http://www.colsoncenter. org/the-center/columns/indepth/17309-williamcarey-1761-1834. (accessed December 30, 2012) 9 See Cunningham, supra note 1.
Today, the Indian Church is one of the fastest growing in the world. It is estimated that sixty million Indians believe in Christ, worshipping in 400,000 churches and house churches. Tens of thousands of Indian missionaries are being sent beyond their borders.9 The Gospel foundation, 23
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t Liberty University School of Law, the Christian faith of students and faculty members is not maligned or mundane; instead, it forms the core of our mission. To that end, faculty members and students are free to pray, share devotions, and discuss a Christian worldview of law. This Article shares with you what I share with students in Property and Wills, Trusts, and Estates—that the law of gifts draws a powerful illustration from John 3:16. John 3:16 stands at the center of the Christian faith: For God so loved the world, that He gave His only begotten Son, that whosoever believeth in Him should not perish, but have everlasting life.1
For billions of people, John 3:16 epitomizes God’s unqualified demonstration of grace and love by His gift of eternal life. The Reverend Billy Graham called John 3:16 “the most familiar passage in the Bible” and “the Gospel [of Jesus Christ] in a nutshell.”2 Even if a person does not accept John 3:16’s gift as a matter of faith, most Americans have undoubtedly seen images of it in popular culture. For example, John 3:16 has been displayed on countless spectator signs at televised sporting events, and athletes often reference it, as Florida Gators Quarterback Tim Tebow did by inscribing it onto his eye black in the 2009 NCAA Football Championship Game. John 3:16 is an iconic part of the fabric of American culture. More importantly, however, God’s promise in John 3:16 characterizes Christianity itself. To the billions of people who profess Christianity, John 3:16 illustrates the greatest gift of all. The legal theory of a completed gift requires a voluntary, gratuitous, immediate, and irrevocable transfer of property from one person to another.3 With just that basic theory of gift law, an enterprising law student could 24
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interpret and apply its key principles to John 3:16 to demonstrate how God’s gift of eternal life constitutes a legally completed gift. As law students know, however, the law often develops analytical tools, called elements; when these elements are interpreted and applied to facts, they unlock the underlying (or overriding based on perception and a taste for semantics) legal theory. Gift law does this by requiring that three elements—donative intent, delivery, and acceptance—be met to constitute a completed gift.4 Each element effectuates the underlying legal theory. Donative intent requires that a person desires to make a voluntary, gratuitous, immediate, and irrevocable transfer of property to another.5 Analytically, the terms voluntary and gratuitous form a very close bind,6 but staying true to this analytical demonstration, I will treat them separately. Voluntary simply means that the transfer was “[d]one by design or intention[,] . . . [u]nconstrained by interference[, and] not impelled by outside influence.”7 God, and God alone, made the sovereign decision to sacrifice his Son to grant eternal life; He did so by His design and free will, without any person or entity forcing His hand.8 God voluntarily intended to make a gift of eternal life. God also gratuitously grants eternal life. If consideration were required for eternal life, then it would not be a gift because gift law requires that the property be transferred gratuitously, i.e., without consideration.9 Had God intended to require consideration from us to receive His grace, then this legal illustration involving John 3:16 would be left to a contracts course rather than a property course discussing the law of gifts. But John 3:16 proclaims that anyone who believes in God’s Son gets eternal life. There are no required works, consideration, quid pro quo, theological tests, or taxes. There is simply a belief that accepts God’s love.10 Now, one can qualify that simple, child-like belief in Jesus to require that a person not only believe in Jesus, but believe that God sacrificed Jesus as atonement for
sins.11 The point is that God’s unconditional and gratuitous love drives this gift—not consideration or a quid-pro-quo arrangement like works.12 Next, God desired that the transfer of the gift of eternal life would be immediate; He gave no indication of His desire to make the transfer in the future. Because the law does not flout common sense, the term immediate means presently, instantaneously, and without delay.13 The text of John 3:16 proves that God’s desire was to convey eternal life presently, instantaneously, and without delay when He “gave His only begotten Son,” because the next phrase states that our belief automatically results in eternal life. It is immediate. Perhaps the immediacy of God’s donative intent is best illustrated in Jesus’ promise to the Penitent Thief on the Cross that his faith resulted in eternal life that very day.14 Finally, the intent necessary to make a valid gift requires that the transfer be irrevocable. Irrevocable means “[u]nalterable” and “committed beyond recall.”15 As I am sure you have already deduced, this Article is not a legal or theological masterpiece; instead, it simply shares a powerful illustration of how the law of gifts works in the context of John 3:16.16 According to the text of John 3:16, God desires us to have eternal life through our belief that He sacrificed his Son for us. For purposes of this article, it is safe to conclude that God did not harbor a hidden desire to revoke the gift of eternal life to those who believe in His Son. The mere intention to give without delivery is unavailing (come on, we all have learned that talk is cheap, that it is easier to make a pledge than to write a check, and that a certain road is paved with good intentions). Given mankind’s proclivity toward inaction even in the face of intention, the law of gifts requires that donative intent must be carried out by the actual, physical delivery of property.17 To be precise, donative intent must be executed by complete and unconditional delivery of the property.18 The power of this legal principle 25
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as revealed in John 3:16 cannot be overstated. It is chilling to overlay this principle, i.e., “the intention must be executed by a complete and unconditional delivery,” with what actually happened to God’s Son on Earth. God’s intention to give eternal life was demonstrated by offering his Son, Jesus, completely and unconditionally to all who would believe in Him. It is striking and breathtaking to see that God’s intention to make the gift was not merely a naked expression of intent; instead, it was executed by delivering Jesus to the cross.19 Ponder that—God’s donative intent was executed by the complete and unconditional delivery of Jesus to Himself be executed by crucifixion.20 There is further proof of God’s intent to make a complete and unconditional delivery of Jesus, the vessel who carries the gift of eternal life. There can be no better illustration of the completeness and finality of this delivery than by Jesus’ final words on the cross, “It is finished.”21 Intention merged into action through the delivery of Jesus; there is no need for any further demonstration of God’s love. The first two required elements of a completed gift—donative intent and actual, physical delivery—are indisputably met. The final element requires that the donee accept the property.22 A gift is fully executed when there is nothing left undone.23 Once all of the elements have been satisfied, the transfer is irrevocable; the donee now has full dominion and control over the property.24 The last element of gift law requires that the donee— you or I—simply accept the property. God’s love directed a gift to you so that your faith ensures eternal life, as long as you accept the gift.25 God’s gift is ready for acceptance, and God always stands just outside the door to every person’s heart.26 In my illustration of how the law of gifts works in the context of John 3:16, I have analyzed the elements of donative intent and delivery; that is all that I can do. I cannot analyze the final element of acceptance. As is the nature of all publications, this article is intended to be read—rather than written (riddle me that)—so there is no way that I can complete this analysis of gift law. That is your task as the reader. What do you believe when it comes to God’s gift of eternal life? Perhaps more relevant, who 26
do you believe? Please feel free to complete the analysis of the greatest gift by thinking about acceptance. The legal conclusion on that final element—acceptance— may not be analytical, however; it just might require a touch of faith. 1 John 3:16 (King James) (emphasis added). 2 In His Own Words: Billy Graham’s Favorites (What is Billy Graham’s favorite Bible verse?), Billy Graham Library, Letters from the Library: The Blog of the Billy Graham Library (The Billy Graham Evangelistic Association), http:// lettersfromthelibrary.com/in-hisown-words-billy-graham%E2%80%99sfavorites (last visited February 18, 2014). Reverend Graham claims John 3:16 as his “favorite verse of Scripture” ever since his mother taught it to him when he “was just a little boy.” Id. Reverend Graham also said, [John 3:16] is the one Scripture that I always preach on in a crusade, usually on the opening night. I suppose it is the most familiar passage in the Bible. It has only twenty-five words in the English translation of it, but it is the Gospel in a nutshell. Someone has called it a miniature Bible. The word “whosoever” in this verse means the whole world. Whatever the color of a person’s skin, whatever language he speaks, God loves him and God is willing to save him. To me that is marvelous. It also says that life doesn’t begin when you die, it begins here and now. See also id. It is noteworthy that Reverend Graham’s grandson, Basyle J. Tchividjian, is an associate professor of law at Liberty University School of Law and offices next to the author of this article. 3 See, e.g., Wash. Univ. v. Catalona, 490 F.3d 667, 674 (8th Cir. 2007) (applying Missouri law); Almeida v. Almeida, 669 P.2d 174, 178 (Haw. Ct. App. 1983); In re Marriage of Link, 839 N.E.2d 678, 681 (Ill. App. Ct. 2005); Hall v. Country Cas. Ins. Co., 562 N.E.2d 640, 648 (Ill. App. Ct. 1990); Rudo v. Karp, 564 A.2d 100, 102—103 (Md. Ct. Spec. App. 1989); Smith v. Shafer, 623 N.E.2d 1261, 1263 (Ohio Ct. App. 1993); BancFirst v. Cox, 175 P.3d 957, 959 (Okla. Civ. App. 2007); Baptist Found. for Christian Educ. v. Baptist Coll. at Charleston, 317 S.E.2d 453, 457 (S.C. Ct. App. 1984). 4 See, e.g., Catalona, 490 F.3d at 674; Dial v. Dial, 603 So.2d 1020, 1022 (Ala. 1992); Matter of Estate of Button, 830 P.2d 1216, 1218 (Kan. Ct. App. 1992); Bennett v. Bennett, 587 A.2d 463, 464 (Me. 1991). 5 See Catalona, 490 F.3d at 674; Hall, 562 N.E.2d at 648. 6 See Black’s Law Dictionary (9th ed. 2009) (defining voluntary to include gratuitous transfers).
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7 Id. 8 See Galatians 2:20 (“I am crucified with Christ: nevertheless I live; yet not I, but Christ liveth in me: and the life which I now live in the flesh I live by the faith of the Son of God, who loved me, and gave himself for me.”) (emphasis added); John 10:11 (“I am the good shepherd: the good shepherd giveth his life for the sheep.”) (emphasis added); Romans 8:32 (“He that spared not his own Son, but delivered him up for us all, how shall he not with him also freely give us all things?”) (emphasis added). 9 Matter of Griffin’s Estate, 599 P.2d 402, 404 (Okl. 1979); Louthan v. King County, 617 P.2d 977, 981 (Wash. 1980). 10 Romans 5:8 (“But God commendeth his love toward us, in that, while we were yet sinners, Christ died for us.”); see, e.g., Luke 23:39-43 (explaining that the Penitent Thief on the Cross received eternal life for his belief in Jesus: “And one of the malefactors which were hanged railed on him, saying, If thou be Christ, save thyself and us. But the other answering rebuked him, saying, Dost not thou fear God, seeing thou art in the same condemnation? And we indeed justly; for we receive the due reward of our deeds: but this man hath done nothing amiss. And he said unto Jesus, Lord, remember me when thou comest into thy kingdom. And Jesus said unto him, Verily I say unto thee, Today shalt thou be with me in paradise.”). 11 See Hebrews 10:14 (“For by one offering he hath perfected forever them that are sanctified.”); Mark 1:15 (“repent ye, and believe the gospel.”); Romans 6:23 (“For the wages of sin is death; but the gift of God is eternal life through Jesus Christ our Lord.”). 12 Ephesians 2:8-9 (“For by grace are ye saved through faith; and that not of yourselves: it is the gift of God: Not of works, lest any man should boast.”) (emphasis added); see also Romans 4 (explaining the difference between faith and works in the context of Abraham). 13 Black’s; Fletcher v. Fletcher, 381 S.W.3d 129, 132 (Ark. Ct. App. 2011). 14 See Luke 23:39-43, supra n.10; Graham, supra n.2. 15 Black’s. 16 In that light, this article does not debate whether salvation can be recalled or revoked or whether the “once-saved, always-saved” belief is theologically sound. 17 See Hall, 562 N.E.2d at 648; Bennett, 587 A.2d at 464; Baptist Found., 317 S.E.2d at 457. It is safe to state, generally speaking, that the law of gifts requires actual, physical delivery of property, but there are certain circumstances, such as when actual, physical delivery is impossible or impracticable, that the law of gifts authorizes constructive or symbolic delivery. See
In re Estate of Lamplaugh, 708 N.W.2d 645, 651 (Neb. 2006); In re Marriage of Zier, 147 P.3d 624, 628 (Wash. Ct. App. 2006). 18 Baptist Found., 317 S.E.2d at 457. 19 Philippians 2:5-11 (“Let this mind be in you, which was also in Christ Jesus: Who, being in the form of God, thought it not robbery to be equal with God: But made himself of no reputation, and took upon him the form of a servant, and was made in the likeness of men: And being found in fashion as a man, he humbled himself, and became obedient unto death, even the death of the cross. Wherefore God also hath highly exalted him, and given him a name which is above every name: That at the name of Jesus every knee should bow, of things in heaven, and things in earth, and things under the earth; And that every tongue should confess that Jesus Christ is Lord, to the glory of God the Father.”) (emphasis added). 20 Matthew 27:26-54. It is uncommon for man to create a god that suffers for man, rather than man suffering for his created god. See Samuel Butler, The Illiad of Homer 418 (Orange Street Press 1998) (“As soon as Juno heard this she said to her son Vulcan, ‘Son Vulcan, hold now your flames; we ought not to use such violence against a god for the sake of mortals.’”). The God of Christianity took a decidedly different route, and the gift of eternal life came not through the suffering of man, but through the suffering of God’s Son. 21 John 19:30. 22 In re Handelsman, 702 N.W.2d 641, 645 (Mich. App. Ct. 2005). The law of gifts often declares that the delivery element is presumed when the gift is beneficial to the donee and comes without conditions. See id.; In re Paulson’s Estate, 219 N.W.2d 132, 136 (N.D. 1974); Bunt v. Fairbanks, 134 N.W.2d 1, 3 (S.D. 1965). The issue of whether the gift of eternal life can be presumed without express acceptance is left for another time. 23 Fowler v. Perry, 830 N.E.2d 97, 105 (Ind. Ct. App. 2005); Baptist Found., 317 S.E.2d at 457. 24 See Fowler, 830 N.E.2d at 105. 25 Romans 1:16 (“For I am not ashamed of the Gospel of Christ: for it is the power of God unto salvation to everyone that believeth.”); Romans 4:5 (“But to him that worketh not, but believeth on him that justifieth the ungodly, his faith is counted for righteousness.”); Romans 5:1—2 (“Therefore being justified by faith, we have peace with God through our Lord Jesus Christ: By whom also we have access by faith into this grace wherein we stand, and rejoice in hope of the glory of God.”). 26 Revelation 3:20 (“Behold, I stand at the door, and knock: if any man hear my voice, and open the door, I will come in to him, and will sup with him, and he with me.”). 27
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dious governmental regimes are by no means a modern phenomenon. History has witnessed many leaders attempt to achieve their evil designs through nefarious methods. These methods are known for debilitating well-intentioned politicians from doing what is right, limiting religion to a commercialized institution, and reducing the law to a manipulative play toy. Naturally, the farther people run from what is good, the deeper those same people descend in the lies by which they rationalize their decisions. Principled citizens have frequently found themselves as the victims of pure evil and often sense the urge to zealously advocate for their beliefs and ideals. Individuals seeking morality hope that the louder their message the more others will listen and either change their views or at least respect theirs.
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However, it seems that the opposite is true. Morality is rarely discussed in social circles and when it is, society is hardly polite towards it. Ask them why and undoubtedly they will recount tales of the hypocrisy and the contempt that we, the church, seem to have for anything outside our four walls. The worst part is that they are not wrong. It is not uncommon to hear Christians express ill will towards governmental figures with whom they vehemently disagree.
last thing we hear of Nebuchadnezzar is in his own words, “Now I, Nebuchadnezzar, praise and extol and honor the King of heaven for all His works are right and His ways are just, and He is able to humble those who walk in pride.”3 If I had the opportunity to meet a leader who has been the cause of incredible evil, would I be able to distinguish the man from the evil within the man? Would I be willing, as Daniel was, to advise this leader on how to secure God’s blessings on his life and his regime?
What we understand to be our duty to expose evil may often be perceived as dishonoring our leaders. How How can we expect can we expect others, especially others, especially those in authority, to honor godly those in authority, to principles when our speech and our honor godly principles actions consistently dishonor their when our speech God-given authority? “There is no and our actions authority except from God, and those which exist are established by God.”1 consistently dishonor
The story of David is another example of honor displayed towards a wicked leader. David was a wanted man, running away from his father-in-law, the king. He knew he was anointed to be the next king, and he knew it was for that very reason that the current king wanted David’s head served on a platter. David was given opportunities to take King Saul’s life as an act of selfdefense. Instead, David told the king:
their God-given Throughout history many individuals authority? have experienced indescribable abuse from authority figures. Yet their willingness “Behold, this day your eyes have seen that to honor caused visible transformation to their the LORD had given you today into my region. Daniel’s nation was destroyed while he was hand in the cave, and some said to kill you, abducted to a far away region. He was forced to but my eye had pity on you; and I said, ‘I live in a world of evil and three of his friends were will not stretch out my hand against my sentenced to death by fire. Daniel had every right to lord, for he is the LORD’S anointed.’ “Now, wish ill against the ruthless King Nebuchadnezzar, my father, see! Indeed, see the edge of your but instead he fought this battle against evil by robe in my hand! For in that I cut off the separating the man, Nebuchadnezzar, from the edge of your robe and did not kill you, evil that was within the man. When interpreting know and perceive that there is no evil the king’s dream, Daniel advised this evil leader to or rebellion in my hands, and I have not humble himself so that God could prosper him and sinned against you, though you are lying lengthen his kingdom.2 in wait for my life to take it.4 Why didn’t Daniel take matters into his own hands and kill the king? Why didn’t he act like the prophets of old and deliver the message of God’s justice without the corresponding message of God’s mercy? The answer is simple: Daniel actually wanted what was best for Nebuchadnezzar. As ludicrous as it sounds, Daniel’s method was successful because the
One concern people have with honoring authority is that they believe it is a sign of tolerance and compromise. They view tolerance as a sign of surrender, and they feel it must be avoided at all costs. However, surrender only describes one manifestation of tolerance known as the permission conception.5 The permission conception is the idea 29
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that a dominant power grants to a weaker subject the ability to have an opinion. People living within this philosophy often feel compelled to conform to the opinions of their leaders. However, there is another type of tolerance known as the respect conception. The respect conception is horizontal in nature because it evidences mutual respect amongst equal people.6
even those with whom we fundamentally disagree. Above all else we are called to pray for our enemies, for our neighbors, for our leaders, and for our nation. “Seek the peace and prosperity of the city to which I have carried you into exile. Pray to the Lord for it, because if it prospers, you too will prosper.”11
Honor is not a sign of permissive tolerance, nor is respect an indication of compromise. Honor allows us to see a person the way God sees them. It frees us to develop trusting relationships with our leaders and creates environments that allow us to encourage their search for truth and for the glory of God.7 Conversely, when honor and respect for authority cease to exist, people take matters into their own hands, thus exacerbating resolvable problems and alienating valuable relationships.
2 Daniel 4:26 (NASB)
Another concern that often surfaces is whether the act of honoring a wicked leader contradicts our duty to expose sin. While God calls us to hate sin, He has also clearly commanded us to honor our authorities, even if they are perpetuators of evil.8
11 Jeremiah 29:7 (NIV)
Maybe you are not called to be an advisor to the king. Why should it matter what you say behind closed doors? The prophet Jonah refused to deliver God’s message of forgiveness and mercy to Israel’s archenemies. God then rebuked him for showing more compassion to a withered plant than to a wicked nation: Then the Lord said, “Should I not have compassion on Nineveh, the great city in which there are more than 120,000 persons who do not know the difference between their right and left hand?”9 Honor frees us to love the person10 and trust that God will take care of the evil within the person. Whether we meet in the Oval Office with the president of the United States or chat in the kitchen with our nextdoor neighbor, we are compelled to share God’s unconditional love and mercy with those around us, 30
1 Romans 13:1 (NASB) 3 Daniel 4:37 (NASB 4 1 Samuel 24:10 (NASB) 5 Rainer Forst, Toleration in Conflict: Past and Present, J. Soc. Philos, 65, 66-68 (Mar. 18, 2014). 6 Id. 7 Proverbs 25:2 (NASB) 8 Romans 13:6-7; 1 Peter 2:13-14 & 17; Ecclesiastes 10:20 (NASB) 9 Jonah 4:11 (NASB) 10 Matthew 5:44 (NASB)
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I
f a person immigrates to the United States illegally and is convicted of a crime, he/she can be removed (a softer word than deported) from the U.S. for violating immigration law. If a person immigrates to this country legally, and acquires a lawful permanent resident (LPR) status (i.e., acquires a green card (another anachronism, as the card is not green)), that person can still be removed from the U.S. if the crime falls into one of two categories: an aggravated felony, or a crime involving moral turpitude (CIMT). These terms, or categories, are defined in the Immigration and Naturalization Act (INA). Nevertheless, both immigration courts and U.S. Circuit Courts of Appeal have debated the vagaries of these two terms, and how to determine if a conviction for a crime meets one of these standards. In 2008, former Attorney General Alberto Gonzales attempted to ease the analysis for immigration judges (IJs) by the creation of a three-step test that he promulgated in Matter of Cristoval Silva-Trevino.1 31
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The first two steps of the test (the elements of the in the court record. This powerful tool was put to offense and any court records from the trial) are use, and almost immediately, the U.S. Circuit Courts agreed to by all IJs and all of the Courts of Appeals of Appeals began to take sides as to whether this in determining what crimes constitute CIMTs. tool was constitutionally permissible for use by IJs. Generally, if the offense pled to matches a generic As of February 1, 2014, four circuits (Third, Fourth, definition of a crime meeting the definition of Ninth and Eleventh3) have found the Silva-Trevino a CIMT, then the test is satisfied, unless there is analysis unacceptable, and have published opinions an element of the crime in the state offense that denouncing the Attorney General’s decision. Two is not in the generic one. The controversy lies in circuits have agreed with the former Attorney the third step. The third step of the Silva-Trevino General in published opinions (Seventh and Eighth).4 test allows for an IJ to consider other “evidence” if The remaining circuits have either not offered any the first two steps prove legally inconclusive. This opinion on Silva-Trevino, or have chosen not to do other “evidence” is generally considered when the so by published (and thus precedential) opinion. first two steps are the result of plea bargaining to The underlying irony to this controversy is that the lesser charges. case of Silva-Trevino was originally He could now look into decided in an immigration court in Example: Immigrant X, an LPR, non-court records to Texas in 2006, but the Fifth Circuit is arrested for aggravated sexual determine the offense Court of Appeals did not take the case battery pursuant to a valid for which the immigrant for oral argument until November warrant and investigation by law faced removal, and 2012. The decision of the Fifth Circuit enforcement (sexual assault/rape will be key to ultimately determining are both CIMTs and could also be he could make the aggravated felonies). He pleads not determination of a CIMT whether the test survives. guilty at his initial appearance. On based on information This case has more far-reaching the first day of the trial, X decides to that was not presented implications than its application plead to indecent assault. The plea is in the court record. to immigration law. Certainly, the accepted. Immigration and Customs world of administrative law will Enforcement (ICE) begins removal proceedings be impacted. It could, for instance, have profound against him for committing a CIMT. The state effects on ambiguous terms and statutes, as well statute for indecent assault has elements that may or as Chevron deference that allows agencies to make may not meet the definition of a CIMT, and because their own determinations about their respective of the plea bargain, the court record is extremely laws and regulations. Because the entire term limited. What does the IJ do? “Crime Involving Moral Turpitude” has been held as ambiguous by many courts, the Attorney General This is where the controversy lies. In three circuits, is allowed to exercise his authority in aiding IJs an IJ may consider outside evidence, such as police to define the term. Unless this definition is an reports, charging documents, or other documents unreasonable interpretation, Article III courts have that might have been admitted as proof at the been required to give deference to that agency’s original trial. This step, beyond the United States determination.5 This analytical tool that was given to Supreme Court’s modified categorical approach,2 allowed for the first time an IJ to act as a finder of IJs to allow them to remove dangerous people from fact. He could now look into non-court records to the United States may find itself suddenly being determine the offense for which the immigrant faced deemed an unreasonable method of determining removal, and he could make the determination of a removability. The floodgates to the immigration CIMT based on information that was not presented courts could potentially be reopened to those who 32
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have committed heinous crimes in this nation, to seek readmission to the country. This matter may ultimately be sent to the U.S. Supreme Court for a final resolution, but for now, IJs are focusing on the Fifth Circuit Court of Appeals. While finishing this article, the Fifth Circuit published its opinion in Silva-Trevino v. Holder on February 7, 2014 (citation currently unavailable; can be seen at www.ca5.uscourts.gov; docket #11-60464). The Fifth Circuit held that the analytical framework proposed by Attorney General Gonzales was an impermissible exercise of his authority based on Fifth Circuit precedent and the Supreme Court’s recent Moncrieffe decision. The court declined to comment on whether the process proposed violated Silva-Trevino’s due process. There is no indication at this time on whether the Department of Justice will appeal the decision.
1 24 I&N Dec. 687 (BIA 2008). 2 Shepard v. United States, 544 U.S. 13 (2005). 3 Jean-Louis v. Atty. Gen. of U.S., 582 F.3d 462 (3rd Cir., 2009); Prudencio v. Holder, 699 F.3d 472 (4th Cir., 2012); Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir., 2013); Sanchez-Fajardo v. U.S. Atty. Gen., 659 F.3d 1303 (11th Cir., 2011). 4 Mata-Guerrero v. Holder, 627 F.3d 256 (7th Cir., 2010); Bobadilla v. Holder, 679 F.3d 1052 (8th Cir., 2012). 5 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 867 (1984)
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F
eticide is not a crime in Wyoming, unlike most states.1 This is due in part to an application of Roe v. Wade’s principles. This article surveys Wyoming’s historic view of feticide, examines its efforts to protect pregnant women and unborn children, and evaluates Kelly’s Law which is one of the results. Goodman v. State, (1979).
In 1975, Charles Goodman shot and killed his pregnant girlfriend, thereby killing their unborn child.2 The trial court convicted Goodman of firstdegree murder and of killing an unborn child by assault on the mother.3 On appeal, Wyoming’s Supreme Court reversed the murder conviction.4 On remand, Goodman received a manslaughter conviction for the homicide of his girlfriend.5 Goodman then challenged his conviction for killing his unborn child on double jeopardy grounds. He argued that “there [was] a merger of the offenses of manslaughter and killing an unborn child by assault and battery upon a pregnant woman, and that he may not be punished twice for the same offense.”6 The Wyoming Supreme Court disagreed: 34
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[T]he killing of the unborn child was a crime against that unborn child and the killing of Donna Poole was a crime against her. As a general proposition, with few exceptions, in crimes against the person there are as many offenses as individuals affected though arising out of only one act.7 Thus, six years after Roe v. Wade, Wyoming’s Supreme Court upheld Wyoming’s former feticide statute,8 because “[t]he killing of the unborn child [is] a crime against that unborn child.” Wyoming’s Legislature repealed this feticide statute in 1982 in a general overhaul of the state’s criminal code, but neglected to replace it.9 Wyoming’s 2006 and 2007 Legislative Sessions In 2006, Wyoming Senator John Barrasso, a medical doctor, sponsored a bill10 which would have established the homicide of an unborn child when the mother is murdered as a separate crime.11 The bill did not make it out of the Senate.12 In 2007, Barrasso sponsored another feticide bill, which the Legislature passed.13 This bill did not make it off the governor’s desk. Governor Dave Freudenthal began his veto letter by citing Roe v. Wade, which held “that an unborn fetus is not a ‘person’ for purposes of 14th Amendment protection.”14 Freudenthal continued: The proponents of this bill have told me that it is not intended to be part of the abortion debate, and that it was intended solely to increase the protection of pregnant women. It occurs to me that argument may be somewhat disingenuous. … This Act makes it a homicide to terminate a pregnancy, without regard to the duration of the pregnancy, or the viability of the fetus. Homicide is by definition the killing of a person. Thus, this Act implicitly defines any unborn fetus as a person, and would put Wyoming squarely in the middle of that debate. Therefore the Act may be unconstitutional. ...15
Wyoming pro-life groups charged Freudenthal with doing the “bidding of pro-abortion groups like NARAL and Planned Parenthood, which turned the pro-woman bill into an attack on abortion.”16 If the bill’s proponents were somewhat disingenuous, Freudenthal was logically consistent—somewhat. If an abortion does not kill a person, then feticide is not murder. With abortion, the mother [often] chooses to end her child’s life.17 With feticide, the father [often] chooses to end his child’s life by the assault or murder of his pregnant girlfriend or wife.18 If abortion is a matter of choice and reproductive “rights” for women, as we are all told, then, on the same principles, men must be free to choose and exercise their “rights” through feticide. Thus, for Wyoming, Roe v. Wade has enabled mothers and fathers to get away with murder. Wyoming’s 2010 Legislative Session In 2009, Branden Burgess, a Colorado resident, shot and killed his pregnant wife, Kelly Burgess. Kelly Burgess was originally from Kemmerer, Wyoming.19 The State of Colorado charged Burgess with seconddegree murder. He pleaded guilty to reckless manslaughter and a weapons charge and received a 15-year sentence.20 Burgess was not charged for the murder of the couple’s unborn child.21 Kelly Burgess was the daughter of Kathy Davison, a state representative from Kemmerer, Wyoming.22 The following year, Representative Davison introduced a feticide bill in Wyoming’s Legislature.23 Eleven representatives and five senators served as cosponsors.24 Davison also introduced a bill providing for the termination of parental rights where a parent murders the other parent of the child,25 and a final bill popularly titled “Kelly’s Law,” providing a sentence enhancement where the homicide of a pregnant woman causes the involuntary termination of the pregnancy.26 However, on March 3, 2010, Rep. Davison withdrew the feticide bill.27 Right to Life of Wyoming and WyWatch Family Institute advised patience and urged legislators to wait for a pro-life governor to replace Governor Freudenthal. 35
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After the governor was replaced, the legislators could work for a feticide bill that would protect women and children.28 These Wyoming pro-life organizations did not support Kelly’s Law because it “ignores the death of unborn children in violent crimes committed against pregnant women.”29 Rep. Davison apparently agreed; she acknowledged that Wyoming needed “something to protect the unborn, and we’re not getting that. So this certainly gives us a chance to enhance a penalty when a pregnant woman [is] murdered. So at least it’s recognized.”30 With Governor Freudenthal’s support and eventual signature,31 Wyoming’s Legislature passed Kelly’s Law. Governor Freudenthal believed this was the right thing to do because it was important to protect the pregnant woman. If Governor Freudenthal believes an unborn fetus is not a person, he has no coherent reason to deter the homicide of pregnant women on account of their pregnancy.32 The Problem with Kelly’s Law WyWatch and Right to Life Wyoming did not support Kelly’s Law for a second reason.33 The sentence enhancement does not apply if the child survives the mother’s homicide.34 The Casper StarTribune, however, maintained that Kelly’s Law applies “regardless of whether the woman’s fetus survived her.”35 Which view is right? As a criminal statute, Kelly’s Law would be construed with the rule of lenity, which gives defendants the benefit of any ambiguity.36 The statute does not address whether the child lives or dies. Defendants will benefit from that ambiguity in cases where the child lives. Kelly’s Law also would be construed strictly in favor of the defendant, but with a commonsense, fair meaning in accord with its statutory purpose and the intent of the lawmakers.37 In common parlance, when a pregnancy is terminated, a child dies, whether voluntarily through abortion or involuntarily through feticide. Finally, Wyoming lawmakers intended Kelly’s Law to apply where both the mother and child die, as happened with Kelly Burgess and her child. WyWatch and Right to 36
Life Wyoming were correct. Kelly’s Law does not apply when the child survives. The Measure of Human Laws Richard Baxter, the noted Puritan pastor, wrote that the law of God is “the fountain of man’s power and laws … the measure and bound of human laws.”38 The law of God protects the lives of pregnant mothers39 and unborn children, both in cases of feticide and cases where the child survives the assault or homicide of his mother.40 Kelly’s Law protects pregnant mothers, to some extent, but fails to protect the unborn, whether they die or miraculously live. Measured against God’s eternal law, Wyoming’s efforts have failed to acknowledge that “[t]he killing of the unborn child [is] a crime against that unborn child[.]”41
1 Marka Fleming, Feticide Laws: Contemporary Legal Applications and Constitutional Inquiries, 29 Pace L. Rev. 43, n.44 (2008) (listing state feticide statutes). 2 Goodman v. State, 573 P.2d 400 (Wyo. 1977). 3 Id., see (former) Wyo. Stat. Ann. § 6-4-507 (1977). 4 Id. 5 Goodman v. State, 601 P.2d 178 (Wyo. 1979). 6 601 P.2d at 184-185. 7 Id. at 185 (citations omitted). 8 Id. at 178 (Goodman did not address whether Roe v. Wade had any bearing on the crime of feticide). 9 Wyoming Session Laws 1982, Ch. 75, § 3, “W.S. 6-1101 through 6-12-109 are repealed and recreated as 6-1-101 through 6-10-203.” 10 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2006/Index/sponsorindex.pdf. 11 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2006/introduced/SF0066.pdf. 12 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2006/Digest/SF0066.htm 13 Wyoming Senate File 118, Enrolled Act 73, http:// votesmart.org/static/billtext/14610.pdf. 14 Gov. Dave Freudenthal letter to Secretary of State Max Maxfield, March 9, 2007, http://votesmart.org/ static/vetotext/14610.pdf. 15 Id., see also, Steven Ertelt, Wyoming Governor Misleads Constituents on Laci Peterson Bill Veto,
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LifeNews.com, April 4, 2007, http://archive.lifenews. com/state2210.html. 16 Steve Ertelt, Wyoming House Panel OKs Bill Ignoring Death of Unborn Children in Crimes, LifeNews. com, February 18, 2010, http://www.lifenews. com/2010/02/18/state-4828/.
29 Id. 30 Ben Neary, Something to protect the unborn, February 19, 2010, Trib.com, http://trib.com/news/ state-and-regional/govt-and-politics/something-toprotect-the-unborn/article_60d9e4c1-36af-5e3e-98a35513ff01389d.html.
17 Other family members often strongly influence abortion decisions.
31 Id.
18 This is not always the case.
33 Steven Ertelt, Wyoming House Panel OKs Bill Ignoring Death of Unborn Children in Crimes, LifeNews.com, Feb. 18, 2010, http://www.lifenews. com/2010/02/18/state-4828/ (“The current legislation does not apply to cases when unborn children survive the attack and may be injured as a result of it.”)
19 Zach Zavoral, Burgess gets max sentence in murder of local woman, Kemmerer Gazette, July 22, 2010, http://www.kemmerergazette.com/v2_news_articles. php?heading=0&story_id=1650&page=72. 20 The Denver Post, Man gets 15 years in prison for wife’s death, http://www.denverpost.com/news/ ci_15782458 . 21 Id. 22 Zavoral, supra at n.17. 23 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2010/Digest/HB0074.htm 24 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2010/Introduced/HB0074.pdf 25 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2010/Introduced/HB0075.pdf, HB 75 was codified as W.S. §14-2-309(a), allowing the termination of parental rights where “[t]he parent is convicted of murder or homicide of the other parent.” 26 Legislature of the State of Wyoming, http://legisweb. state.wy.us/2010/Introduced/HB0132.pdf The statute reads as follows: W.S. § 6-2-109, Sentencing Enhancement for the homicide of a pregnant woman causing the involuntary termination of the pregnancy. (a) Upon sentencing of a defendant who is convicted of an offense pursuant to W.S. 6-2104, 6-2-105 or 6-2-108, if the jury has found that the victim was pregnant at the time of the commission of the offense and that the defendant knew that the victim was pregnant at the time of the commission of the offense, the court shall impose a sentence as follows: (i) For a conviction of W.S. 6-2-104, imprisonment in the penitentiary for any term not less than forty (40) years, or during life; or (ii) For a conviction of W.S. 6-2-105 or 6-2108, imprisonment in the penitentiary for any term not less than ten (10) years and not more than thirty (30) years.
32 Id.
34 See Thomas Lake, The Boy They Couldn’t Kill, Sports Illustrated, September 17, 2012, http:// sportsillustrated.cnn.com/vault/article/magazine/ MAG1206007/8/index.htm ; Dave Adrusko, NFL Player’s Unborn Son Survives Mother’s Brutal Execution, LifeNews.com, September 9, 2012, http:// www.lifenews.com/2012/09/21/nfl-players-unbornson-survives-hit-mothers-brutal-execution/; see also The Chicago Tribune, Timeline of Debra Evans Case, http://www.chicagotribune.com/news/local/chievans-timeline-20111217-ts,0,2593942.htmlpage. 35 Ben Neary, Something to protect the unborn, February 19, 2010, Trib.com, http://trib.com/news/ state-and-regional/govt-and-politics/something-toprotect-the-unborn/article_60d9e4c1-36af-5e3e-98a35513ff01389d.html. 36 Schafer v. State, 197 P.3d 1247, 1251, 2008 WY 149, ¶ 16 (Wyo. 2008) 37 Dover v. State, 664 P.2d 536, 540 (Wyo. 1983) 38 Richard Baxter, V A Christian Directory *105 (1824 reprint) http://books.google.com/ 39 Exodus 21:12 (KJV) “He that smiteth a man, so that he die, shall be surely put to death.” 40 Exodus 21:22-25 (KJV) (“If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.”). 41 Goodman, 601 P.2d at 185 (citations omitted).
27 Supra at n.22. 28 Steven Ertelt, Wyoming House Panel OKs Bill Ignoring Death of Unborn Children in Crimes, LifeNews.com, Feb. 18, 2010, http://www.lifenews. com/2010/02/18/state-4828/. 37
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n February 13, 2014, the United States District Court for the Eastern District of Virginia struck down Article I, Section 15-A of the Virginia Constitution, Sections 20-45.2, 20-45.3 of the Virginia Code and “any other Virginia law that bars same sex marriage.”1 The court held that “any Virginia law” that bars homosexual marriage or the recognition thereof violates the Fourteenth Amendment and is therefore, unconstitutional.2 Unfortunately for Virginians, the federal court fails to see that the issuance of such an order is itself unconstitutional.
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In the closing statements of an opinion wrought with emotion and devoid of precedent, Judge Arenda L. Wright Allen writes: The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have.3 Despite Judge Wright Allen’s allusion to the fairness rationale behind the abolition of slavery, the legal analogy is wanting; for the plaintiffs in the present case seek neither fairness nor equality, but rather, expansion of the law and that, most certainly, is not within the court’s power. Consider a three-part analysis of the court’s holding. The first deals with procedural issues, the second with substantive matters, and the third with societal consequences. First, the court’s dismissal of defendant George E. Shaefer, III’s preliminary procedural challenges disregards the rule of law. Two challenges were presented by the defense: (1) the plaintiffs lack Article III standing to maintain the suit, and (2) the court lacks jurisdiction for “want of a substantial federal question.”4 The court held that the plaintiffs met all three elements necessary to establish standing, including the first requirement that plaintiffs “suffered an ‘injury in fact,’ which is ‘concrete and particularized.’”5 The second element is causation and the third is redressability.6 As to the first element, the test in Lujan v. Defenders of Wildlife however, is not merely that injury in fact be “concrete and particularized,” but that the injury be an “invasion of a legally protected interest” which is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”7 On this point, Claybrook v. Slater held that when a “plaintiff’s claim has no foundation in the law, he has no legally protected interest and thus no standing to sue.”8 The question, therefore, is whether these four
plaintiffs have a legally protected interest at stake such that could confer Article III standing. In Parker v. District of Columbia, the court described injured interests by adverse licensing determinations as those “protected at common law,” “created by statute,” or “constitutionally protected.”9 Here, in Bostic v. Rainey, the court cites Allen v. Wright for its conclusion that “stigmatic injury,” “humiliation,” and “emotional distress” caused by the denial of a marriage license constitute a particularized and concrete Article III injury in fact that invades a legally protected interest.10 However, Allen v. Wright, 468 U.S. 737 (1984) dealt with racial discrimination, not homosexuality. Despite the court’s oddly persistent and emotional allusions to race, no legal link is established between race and homosexuality, two entirely different matters. Indeed, the courts have consistently held that homosexuals are not a “suspect or quasi-suspect class.”11 Unlike gender and race, homosexuality is “not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes.”12 For this reason, homosexuality generally has and continues to be subject to rational basis scrutiny, not strict scrutiny, thus demonstrating a clear legal distinction between race and homosexuality.13 There is, therefore, no sound precedential basis for holding that the plaintiffs’ “hurt feelings” support Article III standing.14 In finding so, the court has circumvented the gatekeeping function of Article III, referred to in Whitmore v. Arkansas, as a necessary tool for determining which disputes are “appropriately resolved through the judicial process.”15 Second, the Bostic court fails to justify its “doctrinal developments” basis for its rejection of the Baker v. Nelson precedent.16 The court dismisses Baker, which held that the Supreme Court has no jurisdiction over the constitutionality of a state statute prohibiting same sex marriage, as “no longer binding” but offers insufficient legal support for the court’s “doctrinal developments” justification.17 39
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Third, the court’s expansion of the Fourteenth Amendment is a violation of the separation of powers doctrine. In The Federalist No. 51, Madison states that the “separate and distinct exercise of the different powers of government . . . is admitted on all hands to be essential to the preservation of liberty.” In her opinion, Judge Wright Allen appeals, somewhat confusingly, to the equal rights guaranteed by the Constitution.18 The judge asserts her holding to be recognition of an existing right as opposed to a “new creation.”19 Most inconsistently, however, the opinion begins with a denouncement of laws rooted in “principles embodied by Christian men.”20 These laws, says Wright Allen, have now “evolved into a civil and secular institution.”21 If that is so, if the law, as the judge recognizes, is rooted in Christianity and Christianity defines marriage as the union between one man and one woman, then how is this holding not a new creation? Indeed, by the judge’s own reasoning, she has created new law. In doing so, the judge has exceeded her authority by usurping the power of the state legislature, which has spoken not once, but twice, through two statutory provisions. This is in addition to the 2006 constitutional amendment, to affirm marriage as the union between one man and one woman. In the opinion, Judge Wright Allen states that “just as there can be no question that marriage is a fundamental right, there is also no dispute that . . . [the] Plaintiffs are deprived of that right to marry.”22 This, once again, is a subversion of the law. No such deprivation has occurred. The court fails to articulate the fact that none of the four plaintiffs is deprived of the right to marry a person of the opposite gender. That–and that alone–is the right protected by the Fourteenth Amendment. Everything else is an expansion of the law. For if, as Judge Wright Allen recognizes, there is “little dispute” that the Constitution is rooted in Christianity, then it must follow that the laws of marriage have never included homosexual couples.23 Thus, when the judiciary interprets the Fourteenth Amendment as guaranteeing men 40
the “freedom to choose to marry the person they love,” it has committed what Madison called an “encroachment” on legislative power.24 Despite recent trends, neither Article III nor the Fourteenth Amendment were created to guarantee free men absolute protection from hurt feelings. As the dissent in U.S. v. Windsor noted, Article III standing “is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives.”25 Furthermore, the Equal Protection clause guarantees just that, equal protection. Nothing more. Nothing less. Yet, in an age of hurt feelings sprung by judicial activism, the feelings of Christians are mocked and brushed aside. Where is the judiciary to protect Christians forced to fund abortion through their health care plans? Are the hurt feelings of a Christian photographer ordered to provide service to homosexual couples worth less than the plaintiffs’ feelings in Bostic v. Rainey?26 In this era of double standards the answer is yes, evidently. If this is not overturned on appeal, it will serve as precedent for every imaginable attack on federalism and family. If marriage is, as this decision declares, the right to marry whomever I love, then I should be able to marry as many as I love. If perchance I love 50 people, I should be allowed to marry all 50. In turn, each of those 50 should be allowed to marry another 50. And so it goes, that a town of 2,500 people can all be happily married to each other. Then, as in the words of one politician, it truly would “take a village” to raise a child. Each child becomes everyone’s child, meaning the state has absolute control over the lives of every individual. That, certainly, is quite the opposite of the freedoms Judge Wright Allen purports to advance. As recent history shows, the end goal of every attack on the traditional notion of marriage is not equal protection but rather, the abolition of marriage as an institution. In the early Soviet Union, for example, the denouncement of traditional marriage resulted in such a moral and societal collapse that even
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the authoritarian Soviet regime could not control it. Eventually, they, too, were forced to return to traditional notions of marriage and family.27 Ultimately, if the state, or in this case, the judiciary, is the source of rights, as Judge Wright Allen seems to think appropriate in a time of “evolving” laws, then our rights are none at all.28 For what the state giveth, the state taketh away.
16 Bostic, 970 F.Supp.2d at 469. See Baker v. Nelson, 409 U.S. 810 (1972) 17 Id. 18 Bostic, 970 F.Supp.2d at 460. 19 Id. at 472. 20 Id. at 464. 21 Id. 22 Id. at 472. 23 Id. at 464.
1 Bostic v. Rainey, 970 F.Supp.2d 456, 468 (E.D. Va. 2014). 2 Id. 3 Id. at 484. 4 Id. at 469. 5 Id. at 467 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). 6 Lujan, 504 U.S. at 560-2. 7 Lujan, 504 U.S. at 560 (quoting Los Angeles v. Lyons, 461 U.S. 95, 101-102 (1983)) (emphasis added).
24 Id. at 461 (emphasis added). 25 Windsor, 133 S.Ct. at 2698. 26 Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013). 27 The Russian Effort to Abolish Marriage, THE ATLANTIC. (July 1, 1926, 12:00 PM), http://www. theatlantic.com/magazine/archive/1926/07/therussian-effort-to-abolish-marriage/306295/ (last visited June 2, 2014). 28 Bostic, 970 F.Supp.2d at 464.
8 Slater, 111 F.3d 904, 907 (D.C. Cir. 1997). 9 Parker, 478 F.3d 370, 376 (2007). See also Warth v. Seldin, 422 U.S. 490, 500. 10 Bostic, 970 F.Supp.2d at 467-8. 11 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir.1990). See also Sevcik v. Sandoval, 911 F.Supp.2d 996, 1007 (D. Nev. 2012). 12 High Tech Gays, 895 F.2d at 573. 13 Id. at 574. Although U.S. v. Windsor 133 S.Ct. 2675, 2684 (2013) is interpreted as an exception to the lower level of scrutiny, the majority of cases have applied rational basis scrutiny. See, e.g., Bourke v. Beshear, __ F.Supp.2d.__ (W.D. Ken. 2014), Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), Sevcik v. Sandoval, 911 F.Supp.2d 996, 1006 (D. Nev. 2012), and Romer v. Evans, 517 U.S. 620, 631-32 (1996). 14 Although humiliation can, at times, be the basis of a plaintiff’s claim (i.e. in tort law), the humiliation, stigmatic injury, and denigration in the Allen v. Wright case referenced by this Court was not cognizable and was therefore held to be too abstract to confer Article III standing. Although recognized as a “noneconomic injury,” the Wright court held that standing was based on the “children’s diminished ability to receive an education in a racially integrated school,” not on the stigmatizing injury caused by racial discrimination. Allen v. Wright, 468 U.S. 737, 755 (1984). 15 Whitmore, 495 U.S. 149, 155 (1990).
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ing Saul, the first king of Israel, waited anxiously. Samuel, the prophet and judge of Israel, was late. The Philistines were amassed. King Saul’s army began scattering. Israel’s law reserved the burning of sacrifices to the Levites only, but the circumstances were dire. Certainly this would qualify as an emergency—national defense was at stake! And it was only a temporary suspension of the limits on government. So King Saul sacrificed the burnt offering to seek the Lord’s favor, and immediately after, Samuel appeared. At that moment, a vital question hung in the balance—would Israel be ruled by law or by men? What does the lesson of Saul, Samuel, and the people of Israel have to do with the American people, the Congress, and the Supreme Court Justices under the United States Constitution of 1787? And what does it have to do with the Second Amendment right to keep and bear arms? According to nationallyrecognized author, speaker, and attorney Herbert W. Titus, plenty. Titus was a guest speaker at the 2013 Liberty University Law Review Symposium, where he explained the biblical foundation for the rule of law upon which this nation’s government is organized. As Titus explained, this nation’s form of government,
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our written Constitution, and our concept of “rule of law” all have biblical roots. God instructed Moses that when a king began to rule over Israel, the law was to be written in a book and given to the king to obey—a written constitution—and Samuel followed Moses’ command.1 Israel’s written law, like our nation’s Constitution, was ratified by the people and was binding on all men—even the king. In the face of King Saul’s desperate appeal to national security in wartime, would Israel’s government be allowed to exceed the constitutional limits placed on government—would this nation be governed by the rule of law or the rule of men? Samuel condemned
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King Saul’s violation of the written national covenant, for only priests and prophets were to sacrifice—not kings. The rule of law was simple and unmoving, no exceptions—no matter how compelling or popular. Titus compared and contrasted the biblical model for the rule of law with our nation’s constitutional government. Like the biblical model, our government was to have limited and defined powers. Nevertheless, Congress and the president have transgressed those limits. Instead of holding the government accountable to the written Constitution like Samuel did, the Supreme Court has created a range of balancing tests—from “strict scrutiny” demanding a compelling government interest to “rationally-related” requiring merely a legitimate interest—that purport to give the government justification for violating the written Constitution. Titus then applied the rule of law to the Second Amendment, which states that a citizen’s right to keep and bear arms shall not be infringed. Although the Supreme Court in District of Columbia v. Heller correctly rejected an interest balancing test in determining whether firearms could be banned, it indirectly supported just such an interest balancing approach by suggesting that longstanding restrictions on the right to keep and bear arms for certain groups might be acceptable. Kenneth A. Klukowski, also a nationally known speaker, author, and attorney, then presented to the audience a counter view. Klukowski suggested that the nuanced multi-step approach that the Supreme Court uses to decide First Amendment free speech cases could also be used to analyze Second Amendment right to bear arms cases. This process would look first to see if the persons and firearms involved implicated the Second Amendment— similar to determining if the speech involved is protected speech. Then the forum would be determined. Just as the regulation of speech varies depending on whether it takes place in a private home, public street, or government building, the regulation of firearms would similarly vary.
Last, the standard of review would be determined. Just as “core speech” is subjected to strict scrutiny, a core right to keep and bear arms could not be infringed without a compelling reason. On the other hand, incidental burdens on the Second Amendment could be justified under a balancing approach in the same way that “time, place, and manner” restrictions are allowed on incidental burdens of free speech. Klukowski suggested that the First Amendment approach to Second Amendment cases would provide robust protections for the right while allowing some restrictions for compelling reasons. Liberty University Law Review’s Annual Symposium furthers the Law Review’s mission “to cultivate a forum of intellectually rigorous thought and debate regarding contemporary legal issues, gleaning insight from the Western legal tradition and remaining faithful to the Christian worldview.” In addition to the Symposium, the Law Review publishes three issues each year in order to “further the mission of the Liberty University School of Law, as well as to bring honor to the God of all Truth.” Liberty’s scholarly law review articles contribute to the legal community well-researched, high-quality arguments on topics of current relevance that are grounded in the biblical perspective. The Symposium issue provides further “intellectually rigorous thought and debate” related to the Symposium topic. In addition to Titus’ presentation, this year’s Symposium issue features articles challenging the right of states to restrict concealed carry in churches—which are not jurisdictionally under the state’s control; discussing the application of biblical principles to concealed-carry cases in the wake of Heller and McDonald v. City of Chicago, Ill.; tracing the rocky road of Virginia’s legislation surrounding the right to keep and bear arms; and exploring the recent increased censorship of gun-related speech in elementary schools. Liberty University Law Review plays a vital role in promoting and publishing scholarly articles that present and debate current issues through the lens of biblical principles.
1 Deuteronomy 17:14-20; 1 Samuel 10:24-25.
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n every aspect of business there are multiple layers of opportunities to give glory to God[.]”1 This foundation sparked the inspiration for the Faith in Business (FiB) Talks. As Christians doing all things for the glory of God the Father, students of Liberty University School of Law sought out leaders in the legal and business worlds to take advantage of the opportunity to encourage students, lawyers, and local business people through their success, failure, and experience. FiB Talks provides a platform for distinguished entrepreneurs, business legal professionals, and corporate executives who have one thing in common – a heart for the Great Commission. As a Christian school, Liberty University School of Law should be leading the way. FiB Talks is just another way that Liberty University is training Champions for Christ. Modeled after the ever-popular TED Talks, FiB Talks is a day-long event created by the Business and Transactions Law Society (BTLS) at Liberty University School of Law. The BTLS wanted to create an event that would allow Liberty University law and business students a chance to hear from successful professionals who are not only working in the industries of interest to students, but who are also making a difference in the world along the way. Hearing real-life accounts from current professionals helps the students see what hard work can achieve. The first annual FiB Talks was a tremendous success. Five speakers from a variety of unique industries traveled from all corners of the country to share their insight and words of wisdom with Liberty University
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School of Law and School of Business students, as well as Central Virginia business professionals. Among the guest speakers were Michael Ward (CEO at OzForex), David Wasik (VP of Operations at Hope International), Nat Pierce (Founding Partner of Pierce McCoy, PLLC), and John Van Drunen (VP and Legal Counsel at the Evangelical Council for Financial Accountability (ECFA).
School of Law is much bigger than just training public interest lawyers, although that is certainly part of it. It includes training planning lawyers to go out and represent business or other planning clients, start businesses themselves, serve in-house in existing businesses, etc., in order to glorify God by fulfilling the cultural mandate to take dominion over the earth.”
The keynote speaker, Henry Kaestner, shared his past experiences building Bandwidth.com. His insight into how to build a company that strives for excellence, but provides a family-friendly environment and cutting-edge work at the same time, was truly an inspiration to all in attendance. Businesses provide the perfect opportunity to serve employees, build into their lives, and make an impact on the current business landscape with amazing products and services. Mirroring the purpose of FiB Talks, Mr. Kaestner summed up the vision of Bandwidth.com, “We exist to bring glory to God. It’s that simple.”
The BTLS is committed to continuing to provide services to the local business and legal community. The hope is that we can build rapport with the local businesses and chamber of commerce. The BTLS is planning a series of events to be held annually that will be free of charge to local businesses in order to provide them with valuable services. These events will highlight areas of tax, planning, or potential litigation pitfalls. The events are planned as mini FiB Talks: short informational events to help business owners consider various strategies to incorporate into their businesses. The plan is to strengthen the relationships with business owners and local attorneys. Ideally, these events would stimulate opportunities for local attorneys to conduct the legal work that is highlighted during the events, in turn reinforcing the local bar and creating internship opportunities for students.
The FiB program was designed to incorporate different business industries. It offers a snapshot look into the nuances of the legal work surrounding specific transactions and opportunities to practice law. Seeing the intersection of business and legal planning issues provides inspiration for possible practice areas in which students can specialize. The event also allowed opportunities to network with current professionals and gain valuable career insight. The BTLS also promotes the program to host potential law students who have an interest in tax, corporate, business planning, and nonprofit law. These subject areas are real strengths at Liberty University School of Law. Business and commercial law is a massive practice area through which Christians can dramatically impact the daily lives of tens or even hundreds of businesses. This area of the law is one program that the school is dedicated to growing. According to Professor Rodney Chrisman, “The mission of Liberty University
The response to the FiB Talks was phenomenal. The BTLS received positive feedback all around: “The FiB event was simply fantastic. It gave the students a chance to interact with professionals in the business world—both lawyers and business professionals, and hear their thoughts on the integration of their Christian faith with their calling in the world of business,” said Professor Chrisman reflecting on the event. The arrangement of the events allowed students to come and go as their schedules allowed. Through prayer and commitment to the Lord, the BTLS members plan to expand this event in the future. 1 Business for the Glory of God, Wayne Grudem
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LAW AND LAW AND RELIGION: RELIGION Michael Varnell
A LEGENDARY FORMER FEDERAL JUDGE VISITS LIBERTY UNIVERSITY SCHOOL OF LAW
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iberty University School of Law was honored by a recent visit from the Honorable Morris Sheppard Arnold, formerly of the United States Court of Appeals for the Eighth Circuit. Judge Arnold’s storied and expansive career encompasses legal academia, law practice, political involvement, and the federal judiciary.1 After his two-day visit, Judge Arnold raved, “I have never been as warmly received as I was at Liberty. It was an enormous pleasure to meet students who are so intelligent and engaged. Liberty University School of Law has an exceedingly bright future; I shall greatly enjoy watching it grow and prosper.”
Judge Arnold and Professor Tory L. Lucas have enjoyed a longstanding friendship since Professor Lucas clerked for Judge Arnold’s colleagues on the Eighth Circuit, Chief Judge William Jay Riley (who Professor Lucas hosted at Liberty last year) and Judge Pasco M. Bowman II. Since Professor Lucas joined the School of Law faculty, he and Judge Arnold worked to find the right opportunity to have Judge Arnold experience Liberty and vice-versa. In the fall of 2012, Judge Arnold sent a copy of a speech that he had been drafting on law and religion to Professor Lucas, suggesting that a Federalist Society event might be the perfect opportunity to visit Liberty. That idea was the key that eventually unlocked Judge Arnold’s visit. During Judge Arnold’s jam-packed visit, he dined with law students and faculty at Professor Lucas’s home and at a local steakhouse, stayed in Liberty’s historic Carter Glass Mansion,2 toured Liberty’s expanding campus, led a special session of Professor Lucas’ Federal Jurisdiction class in which he expertly discussed the Foreign Intelligence Surveillance Act and the United States Foreign Intelligence Surveillance Act Court of Review,3 and met with members of the Liberty University Law Review. Professor Tory Lucas and Judge Arnold are pictured above standing in front of the Carter Glass Mansion at Liberty University. Judge Arnold was named after the late Senator Morris Sheppard of Texas. Senator Sheppard drafted the 18th Amendment to the Constitution (Prohibition) and served in the Senate with the late Senator Carter Glass of Virginia. Almost one hundred years later, Judge Arnold stands on a dry campus in front of the house that belonged to his namesake’s colleague. 46
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The highlight of Judge Arnold’s visit, however, was a Federalist Society event with nearly 150 attendees. With the stunning backdrop of Liberty University School of Law’s Supreme Courtroom, Judge Arnold delivered a thought-provoking speech regarding religion’s influence on law. Judge Arnold used the speech to ponder aloud, for the benefit of his audience, whether judges contemplate their religious beliefs in making decisions. Judge Arnold fascinated everyone by accomplishing this monumental and vexing question by (1) providing examples of Christianity’s influence on the legal system, and (2) recounting personal stories about his famous brother and federal judge, the late Richard Sheppard Arnold. Although some commentators, such as Christopher Hitchens4 and Richard Dawkins5, suggest that religion is false and politically incorrect, Judge Arnold deems it undeniable that the JudeoChristian religion of The Bible has vastly impacted American culture and law. Judge Arnold provided three concrete examples of Christianity’s influence on the legal system, referring to the civil law, criminal law, and equity: The Anglo-Saxon laws were first reduced to writing fourteen centuries ago under the influence of the Christian Church, and especially of St. Augustine, and it is probable that Christian missionaries persuaded the tribe that it was not dishonorable to take money instead of blood for personal injuries. In other words, missionaries made a contribution to the eventual triumph of money compensation over blood vengeance as the rule of the English common law. . . . Reasonable doubt [is] the product of eighteenth-century Christian angst over the peril to jurors’ souls that would arise if they rendered a false oath in a matter of blood. This rule, firmly rooted in our notions of due process, in other words, perhaps finds its genesis in jurors’ self
interest in getting into Heaven, as in an abstract regard for those accused of crime or for the liberty of the subject. [I]n the late fourteenth or early fifteenth century, the English Chancellor, who . . . was an ecclesiastic, began ordering people to perform their promises, i.e., he invented the equitable remedy of specific performance. But he did not do so for the benefit of the promisee; he did it to save the soul of the promissor, to keep the promissor on the straight and narrow path. So what we think of as a remedy . . . was originally a matter of Christian discipline and charity born out of a concern for the spiritual health of people who broke their word. Once Judge Arnold described how bedrock principles of American law find their roots in Christianity, he then transitioned into a fascinating journey of anecdotes from his brother’s life to contemplate how religion impacted one of America’s mostrespected judges. Judge Arnold’s older brother, Richard,6 graduated first in his class at Harvard Law School, clerked for Justice Brennan, served twenty years as a federal trial and appellate judge, and was nearly nominated to the Supreme Court of the United States by President Clinton.7 In addition to his extraordinary credentials, Richard’s personal Christian faith and religion were central to his life. When Richard ran for the United States Congress, he described himself as “Churchman, Father, Lawyer, Democrat,” and he often called politics a Christian vocation. Richard engaged in daily biblical readings and devotions. Judge Arnold explained how Justice Clarence Thomas routinely recognized Richard’s quiet humility: “Richard could be the smartest person in the room but you wouldn’t necessarily know it.” Judge Arnold recounted the famous story of Richard’s giving money to a homeless man (a common practice), and when once admonished by a companion that he might be enabling a drug addict, Richard replied, “You never know, he might be an angel.”8 47
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As a striking example of how Richard’s religious beliefs were reflected in his judging, Judge Arnold discussed one of Richard’s famous opinions, the one he signed in Anastasoff v. United States. In that case, the United States Court of Appeals for the Eighth Circuit held that it is unconstitutional for a court to deem that its unpublished opinions have no precedential value. In his opinion, Richard extensively cited Sir Edward Coke, William Blackstone, Alexander Hamilton, and James Madison in contending that the very nature of judicial power requires binding precedent.9 The holding in Anastasoff sparked a debate that resulted in a large amount of complex literature on the legal issue of the precedential value of unpublished opinions. While many commentators reasoned “on a very high, prolix plane on why Richard did what he did,” Judge Arnold gave a much simpler explanation based on what Richard had told him personally: “[My brother] thought that at bottom the ‘noprecedent’ rule established a second-class legal regime for poor people because the rule perhaps had its genesis, and certainly finds its most common expression in, uncounseled cases, cases where the plaintiffs have no lawyers. [Richard] simply took to heart the Biblical admonition against dismissive treatment for the least among us. And it is really not much more complicated than that. Because most modern thinkers tend to treat religion as merely epiphenomenal at best, they are very likely not to see this explanation as even possible. But there it is.”
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Arnold a dozen years ago and throughout our friendship since, I have always been drawn to his wit and wisdom,” said Professor Lucas. “It was an honor to host Judge Arnold at Liberty University School of Law and to see that members of this community were also drawn to that same wit and wisdom that are trademarks of Judge Arnold. I am proud that Judge Arnold is now a friend of Liberty; it might not be too far-fetched to say that Judge Arnold and Liberty University School of Law are a match made in Heaven. I only hope that scholars in this place pick up where Judge Arnold left off. There is work to do.” 1 See Biography of the Honorable Morris Sheppard Arnold, located at http://www.lb8.uscourts.gov/ pubsandservices/histsociety/arnold,morris-bioaslhreception-2012.pdf (last visited March 9, 2014). 2 The Carter Glass Mansion served as the home of United States Senator Carter Glass. Notably, Senator Glass served with Judge Arnold’s maternal grandfather, Senator John Morris Sheppard, who wrote the Eighteenth Amendment to the Constitution of the United States, which banned intoxicating liquors. Liberty is a dry campus. 3 In 2008, the Chief Justice of the United States, John G. Roberts, designated Judge Arnold to serve on the United States Foreign Intelligence Surveillance Act Court of Review. 4 Christopher Hitchens is the author of the book God Is Not Great: How Religion Poisons Everything. 5 Richard Dawkins is the author of The God Delusion. 6 Although it may seem colloquial to refer to Judge Richard Sheppard Arnold simply as Richard, I do so here because it distinguishes Richard from Morris and because that is how Judge Arnold referred to his brother.
Judge Arnold masterfully explained that Richard seemed to have acquired his personal traits and judicial inclinations in a Christian setting, just as the Constitution of the United States of America is the result of the religious setting of the Founding Era.
7 For more information about Richard’s extraordinary life, please see Professor Lucas’s article on Judge Friendly Designed to be a Federal Judge: An Extended Commentary and Book Review of David M Morsen, Henry Friendly; Greatest Judge of his era. (Retrieved from http://papers.ssrn.com/sol3/cf_dev/AbsByAuth. cfm?per_id=1156825#show2401196.)
Professor Lucas characterized Judge Arnold’s visit as a resounding success and his Federalist Society speech as one that should challenge the mind and touch the heart of every Christian attorney. “From the moment that I met Judge Morris Sheppard
8 This Biblical worldview finds a home in Hebrews 13. 9 See Anastasoff v. United States, 223 F.3d 898, 901 vacated by, 235 F.3d 1054 (8th Cir. 2000).
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hild abuse is the most underreported crime in our society. Even still, a report of child abuse is made every ten seconds. Reporting of child abuse is a complex process that leaves many children unheard, questioned, and at risk of more abuse. Far too many children go through abusive situations without hope of a better future. Approaches to raising awareness for child abuse should be multi-faceted and focused on more than one area of a child’s life. When abuse is reported and Child Protective Services (CPS) or law enforcement gets involved, a child is faced with a complex legal process. A child who has experienced abuse also needs a counselor or therapist who is willing to walk alongside the child through the process.
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During March 2014, the Criminal Law Society hosted the first annual Child Abuse Awareness Week at Liberty University School of Law. The goal of the week was to raise awareness and shine a light on a very dark issue, while equipping students to make a positive impact on those they will work with in the future. Undergraduate, graduate, and law students, along with faculty gathered for an incredible series of events. The first event, “Bridging the Gap: The Relationship Between Psychology and Law When Addressing Childhood Sexual Abuse,” featured Dr. Jeanne Brooks from the Center for Counseling and Family Studies, Professors Caren Harp and Basyle Tchividjian from the law school, and Lieutenant Darryl Saunders from the Bedford County Sheriff’s Office Criminal Investigation Division. During this event, Dr. Brooks hosted a breakout session for law students, undergraduate government students, and others who were interested in learning more about the psychology aspect of addressing childhood sexual abuse. Dr. Brooks’ dynamic presentation gave insight into the way a child’s brain develops and how traumatic events in a child’s life can alter the development of the brain. Dr. Brooks also explained that attorneys can structure their cases in a manner that utilizes a counselor or psychologist on the witness stand in a valuable way. Professor Harp hosted a breakout session for graduate counseling students, undergraduate psychology students and those interested in learning about the basics of the legal system. This presentation allowed those who are unfamiliar with the legal system to learn the meanings of some legal terminology, how a case gets to trial, and how a counselor or therapist can have a significant role in addressing child sexual abuse in the courtroom. Following the breakout sessions, guests had the opportunity to listen to a panel discussion that gave different perspectives of a defense attorney, prosecutor, counselor, and law enforcement officer when addressing childhood sexual abuse. Listening 50
to the panel interact in discussions about a hypothetical case allowed the audience to see how a multi-faceted perspective is the best way to address these complex issues. By learning to understand and grasp the different sides of a complex issue, practitioners can have an incredible impact on the life of a child. The special guest of the week was President Ronald Reagan’s son, Michael Reagan. Mr. Reagan’s talk, “On the Outside Looking In,” was an incredibly personal and powerful talk that left a lasting impression on those who were present. Christ’s love should compel us to action. Jesus himself said, “Let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these.” (Matthew 19:14). When we know the value of children, see a problem in our society regarding children, and sit back and do nothing, we are failing these little ones. As Christian lawyers, counselors, therapists, social workers, police officers and anyone else who encounters these situations, we should give serious consideration to the caliber of expertise we are willing to devote to these matters. May our work for justice point these precious children to the ultimate Healer, Jesus Christ, who “heals the brokenhearted and binds up their wounds.” (Psalm 147:3)
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“Michael Reagan here . . .�
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hose were the first words of a short email I received about a year ago from a person identifying himself as Michael Reagan, and who informed me that it was time for Christians to finally begin acknowledging the existence of child abuse. At first, I had no idea who this man was and why he was writing me. A short Google investigation later led me to discover that this email was from the son of my childhood hero, Ronald Reagan! That correspondence was the beginning of a dear friendship with a man that has deeply moved and inspired me in so many amazing ways. As a child of two famous actors, Michael Reagan was not immune from the dark and destructive offense of child sexual abuse. As a young boy, Mike was sexually abused for over a year by a perpetrator who owned an exclusive after-school care program and whose actions and threats shamed a little boy into silence for decades. As all sexual abuse survivors, my friend Mike has spent a lifetime processing this horrific offense as he walks along this long and difficult journey of healing. This past March, as part of Child Abuse Awareness Week, I had the privilege of introducing Mike to students at Liberty University School of Law and then sat down and listened to him spend the next hour opening his heart in such a raw and transparent way about this incredibly difficult and personal issue. Though what I heard cannot be adequately described in written words, I want to share just a snapshot of what this brave man taught me during that hour. 51
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Mike Reagan taught me that child sexual abuse shames survivors into silence. A shame fueled by one’s own confusion and pain. A shame fueled by a fear of what those around will think and say. A child who is taken to an isolated place and told to take off his clothes as the perpetrator takes pictures, and then later shown those pictures as the perpetrator says, “Wouldn’t your mother like a copy of this?” will be shamed into silence. A boy who is being victimized by a male perpetrator and sits in church listening to a pastor preach that homosexuals are going to hell, will be shamed into silence. A teenage survivor of sexual abuse who is sent away to boarding school and finds himself wetting his bed each night due to the abuse trauma will be shamed into silently getting up early each morning to discreetly change his sheets before anyone else notices. An abuse survivor, who finally gains enough courage to tell his stepmother only to have her initial response be concern about her own reputation, will be shamed into silence. The list could go on and on. Michael Reagan helped me understand the destructive power of shame and that its source comes from perpetrators, loved ones, friends, and even inside our churches. During his powerful and very personal presentation, Mike explained that child sexual abuse picks apart the self-esteem of its victims and slowly destroys them along with causing immeasurable harm to those who love them most. A teenage boy sexually victimized as a child steals money from his father’s wallet and buys prostitutes in a desperate attempt to try and clear up any confusion about his sexual identity. An abuse victim convinced that he is worthless and unlovable spends decades sabotaging the relationship with his parents by acting out in anger and hatred towards them. A father abused as a child tears down his own child in a desperate attempt to build up his own self-esteem. A grown man who was sexually abused as a child finds himself taken back to being a helpless child whenever faced with challenges where he feels helpless or exploited. This list could go on and on. Michael Reagan helped 52
me grasp that putting the pieces of self-esteem back together is a difficult and painstaking part of the abuse survivor’s lifelong journey. Perhaps most importantly, Mike Reagan taught me that there is authentic hope for the many who have suffered from the ravages of this horrific offense. A hope illuminated by the amazing people who walk alongside the suffering and never leave. A hope illuminated by years of professional counseling. A hope illuminated each time light is brought to the dark places of the heart. A hope ultimately illuminated by a pursuing God who so clearly demonstrates that we are anything but worthless. Mike Reagan is the first person to tell you that he has a long way to go on his journey and that there are undoubtedly many difficult days ahead. However, he will also tell you that he has made some progress and that he continues to press forward comforted by the realization that the God of hope will never let him go. In his book, “The Hammer of God,” Bo Giertz writes, “The heart is a rusty old can on a junk heap. A fine birthday gift indeed! But a wonderful Lord passes by, and has mercy on the wretched tin can, sticks his walking cane through it and rescues it from the junk pile and takes it home with Him. That is how it is.” After years of walking in shame and battling against self-esteem, God is carrying my friend Mike to a place where he is finally realizing that he is no rusty tin can, but a rescued and beautiful child of God. Though Ronald Reagan was a childhood hero, I can say with great joy that Michael Reagan is one of my life heroes. At great cost, he is taking a deeply painful life and is allowing it to be transformed into something beautiful as he provides a voice to the voiceless and courage to the scores of survivors who are drowning in shame and fear. Michael Reagan is not alone. There are untold numbers of Michael Reagans out there who are serving, loving, and walking alongside hurting souls without attention of fanfare, but simply because they care. They look a lot like Jesus.
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he most excruciating pain he has ever experienced. The most frightening moments of the eight years of life he has breathed. The moments that turned his life upside down as his innocence was blatantly stolen from him. The moments he was told to keep secret, because, if he did not, bad things would happen to him. He is embarrassed to speak of them—the details humiliate him. To the outside world he is a precious, little, eight-year-old boy. But today, he is the reason there is a judge sitting on the bench. Today, he takes the witness stand to testify against the man who caused the most horrific moments of his life. The sight of the defendant alone is enough to make his body shake from head to toe. Yet, today, this brave little boy will sit in a big wooden chair that engulfs his little body, by himself, and tell yet another room of strangers of the sexual abuse the defendant inflicted upon his life. 53
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The value of a vulnerable child. He speaks of unspeakable moments the defendant, the perpetrator, inflicted upon his life—destroying his innocence. The value of these words could put this man in jail. This vulnerable child has already been traumatized beyond what any child should bear. The courtroom, the place of justice, should be the last place to traumatize him again—when this brave, vulnerable, child speaks of unspeakable moments. Child abuse is wrapped up in secrecy, shame, guilt and pain—physical, psychological, spiritual, and emotional. Generally speaking, once a child has disclosed the abuse to someone, or there is reason to suspect a crime has occurred, an investigation will take place. The child is often questioned and asked to share what happened to police officers, investigators, child protective services personnel, a guardian ad litem, medical doctors, psychologists, and potentially more—all before the case goes to trial. Little does the child know that each of these conversations about the most horrific moments of his life will later be scrutinized, in order for the defense to find just the slightest inconsistency in attempts to discredit the child. In certain situations, the child’s testimony could be the only direct evidence of the abuse. While in most cases there is corroborating evidence, the child’s words hold the most value. Jurors often wonder why a child would allow someone to sexually abuse him and keep it a secret. The prosecution will often first explain to the jury how the perpetrator could accomplish the abuse without the use of force. Perpetrators who abuse children for an extended period of time look for ways to have access to children. The grooming behaviors of a perpetrator are the ways that the perpetrator influences a child before the abuse occurs. Behaviors such as taking on a father-figure type of role or mentoring a child are commonplace. Sexual abuse also occurs within families—both nuclear and extended families. Perpetrators induce a child to secrecy by threatening the child or scaring him into keeping the abuse a secret. Explaining the 54
grooming behaviors and how a child is induced to secrecy is vital to the juror’s understanding of the child’s perspective. Prosecutors and defense attorneys have different styles when speaking with a child on the witness stand. Prosecutors aim to educate the jury and verify the allegations the child has brought forth by asking the child questions that clarify the “who, what, where, when, and why” of the occurrences of abuse.1 A child is more likely to elaborate on a “yes-no” question to a prosecutor than a defense attorney. As part of educating the jury on the grooming behaviors of the perpetrator, prosecutors are more likely to ask questions about the suspect’s statements to the child than defense attorneys.2 Since jurors are more likely to believe a child’s testimony when they hear that the disclosure of abuse has not changed over time, the defense will harp on even the slightest inconsistency in a child’s disclosure. The defense aims to delineate the child’s credibility by harping on the impressionable nature of a child. In the defense’s eyes, the child has disclosed the abuse to multiple parties by the time the case gets to trial, so any discrepancy can point to someone’s influence over the child’s testimony. Therefore, the defense attorneys are much more likely to ask the child questions about certain disclosures with different individuals. This places an enormous weight on every conversation the child has with authorities and family members prior to trial and the child’s memory of each disclosure.3 What seems to be missing from child testimony strategies is a proper understanding of the dynamics of sexual abuse and disclosures and the vulnerability and fragility of a child. Research shows that most attorneys do not alter the types of questions they ask for children of different ages.4 A younger child who has been asked a question in a confusing manner may come across as unsure of his response, when in reality the way the question was phrased is what caused the confused tone of voice. Attorneys on both sides should aim to ask questions
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that are age appropriate and easy to understand for the child. It is very difficult for young children to conceptualize and understand how to decipher between the different disclosures with different individuals because their brains have not developed to the point where these things are easy to decipher. Other types of challenges for a child witness are moving trial dates. Many children experience “secondary trauma” when they testify in court against their abuser. Testifying against the perpetrator and being subject to direct and crossexamination from attorneys is stressful to the point of causing trauma in the child’s life. Children whose lives are interrupted to come testify in court, only to have the trial date moved, are traumatized yet again because their brain has already mentally prepped them to go through that experience, only to have it delayed.5 Children also have to testify on more than one occasion at times. A child could testify at different times during the discovery phase of a trial, at the trial, and again at the sentencing. However, there are also children who experience a sense of empowerment when they testify in court.6 Research shows that children who have caregiver support are more likely to experience positive reactions to testifying in court. Positive interventions are crucial to a child’s well-being prior to, during, and after a child testifies in court.7 Prosecuting attorneys should strive to have enough pre-trial interaction with a child to make the child comfortable with them in the courtroom. This will help ease the nerves of the child. Another way prosecutors can assist a child is by making sure the questions for the child are age appropriate. Research also shows that when children have testified in court and later find out that the perpetrator has been found guilty, they are more likely to look back on the experience as an empowering experience, thus, helping their healing.8
at a child’s testimony as unique and distinct from other types of testimony. A proper understanding of the vulnerabilities of a child, the mentality of a child and how perpetrators operate is the most effective way that an attorney can ensure that true justice is being served. These children have been broken and shattered by the abuse inflicted upon their lives and it is in that state that they are willing to be brave and speak out against the one who has caused their brokenness. It is the least attorneys can do, to educate themselves on the issues that matter in order to help the child find that sense of empowerment. Ultimately, may the work for justice point children to the Ultimate Healer, Jesus Christ who “binds up the brokenhearted and heals their wounds.”9 1 Stacia N. Stolzenberg & Thomas D. Lyon, How Attorneys Question Children About the Dynamics of Sexual Abuse and Disclosure in Criminal Trials, 20 Psychology, Public Policy, and Law 19 (2014). 2 Id. 3 Id. 4 Id. 5 Id. 6 Jodi A. Quas & Gail S. Goodman, Consequences of Criminal Court Involvement for Child Victims, 18 Psychology, Public Policy, and Law 392 (2012). 7 Id. 8 Id. 9 Psalm 147:3 (English Standard Version).
The value of a child cannot be put into words. In order to find true justice in the courtroom for these precious children who have been violated beyond what any child should ever bear, attorneys must look 55
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