It's an Arbor Day Miracle: A History of the Tennessee Badlands

Image by UNC Press

Duncan Maysilles's Ducktown Smoke: The Fight over One of the South's Greatest Environmental Disasters is not actually a history of the Tennessee Badlands so much as it is a history of the legal battles being fought over the smelter smoke that created the badlands. Consequently, for those unaccustomed to environmental or legal history, the narrative can be quite dry. The discussion of legal principles and courtroom delay tactics, interspersed with obscure Latin, is spiced up only with the occasional turn to the chemical reaction of sulfur smoke with water in the air and the resultant effects on top soil. All in all, they are about the two dullest historical imaginable. Yet Maysilles crafts such an interesting narrative about such an unjustly obscure subject, that the curious reader can bear with the limits of his genre long enough to see the story to its end. The result is a fascinating little book that should be of interest to legal historians, environmental historians, and those who, like me, found themselves living right in the backyard of one of the most curious environmental anomalies in America.

The Ducktown Basin, Maysilles explains, was a geography that cried out for disaster. The rich copper deposits right on the surface were too tempting for miners to ignore. Transportation deficiencies made the raw materials too expensive to transport off site to smelt. The sulfur content of the rocks was unusually high, creating unusually toxic smelting smoke. The geography of the basin was such that the smoke, once in the air, could not escape and dissipate into the atmosphere. The moist climate of the temperate rainforest meant that the chemicals were constantly being delivered back into the the soil in the form of toxic rain. The resulting concentration of chemicals in the air and water stripped the soil, killed the trees, and launched a legal battle between the state of Georgia and the mining companies that made it all the way to the Supreme Court on multiple occasions.

Intrigued as I was by this untold story and fortunate enough to be going to east Tennessee for a visit, I took the opportunity to drive down to Ducktown and see what remained of the infamous badlands created through ignorance, negligence, and geographical misfortune. The answer: very little. At the Ducktown museum, which commemorates both the mine and the unusual topography it created, the woman behind the desk took me with pride to a satellite photo of the region from some decades ago. She recalled with pride, "The only two man made things you could see from space were the Great Wall of China and the Tennessee Badlands." The nostalgia poured out of her as she remembered a time when, stripped of all flora and fauna, she need not worry about snakes or mosquitoes like her neighbors outside the basin in the lush Tennessee mountain forests. "It's too bad," she told me, "because we just look like everyone else now." Maysilles tells a different story, one of workers who had to have separate car for work and everything else because just by driving into the basin the air would begin to peel away the paint. He shares, perhaps for the first time for modern eyes, the stories of small subsistence farmers who had their land stripped of its fertility and, when they protested, found themselves fired from the mines where they worked to supplement their income. He tells of a single woman who spent years in court seeking damages from the mining companies and won, only to have her settlement reduced to one dollar on appeal. Memory is truly a curious phenomenon, and it is difficult to sort out whose story should take precedence: Maysilles, the outside critic, or the woman at the museum who grew up in Ducktown and whose husband was a mine worker.

In any case, the story does not linger in the confusing days of the Tennessee Badlands. Cooperative ventures by the government and the various industries who have controlled the mining companies over the years have struggled to make the basin green again. These herculean efforts to reforest have been largely rewarded, though not immediately and not without struggle and expense. Driving over the crest and into the basin, we noticed no difference between the forests without and the forests within. The Ducktown Basin is teeming with life again, even snakes and mosquitoes. As the reforestation began to take hold, many in the basin, I suspect the woman at the museum among them, lobbied to have a piece of the badlands preserved as a memorial. It was actually this memorial that I had traveled out to see, a relic of the way the basin had looked when it was an environmental catastrophe and a tourist attraction. Here then, is the arbor day miracle. The reclamation efforts have been so successful, life so insistent on reclaiming the dead basin, that it is a struggle to keep the last little bit of badlands in its pristine, unnatural state. Here it is, as it appeared at the time of my visit, trying to fight off the invasion of trees, but failing so completely that the little saplings are springing up even in the steep slope that terminates in a flooded mineshaft:



Maysilles has given the curious and patient reader a wonderful glimpse into a largely ignored subject. His interest is primarily in the way the legal battle continues to be cited in major environmental cases today. Mine was in the hidden treasure that had been in my backyard all the years I lived in Tennessee but that I had never known about until I left. A law student told me recently that she loved the way Maysilles had made obscure legal principles comprehensible, in ways that even her text books couldn't. Whatever it may be, if something about Ducktown has peaked your curiosity, I highly encourage picking up this book. I also wholeheartedly recommend that anyone in the region make a journey down to Ducktown to explore. The drive is beautiful (no matter what direction you come from), the community is quaint, and the history is engaging.

And if you should stop in and see the precious little old woman at the museum desk, tell her you read about her online and that there are still people fascinated by her community, even if they "just look like everyone else now."

Animal Advocacy in North Stonington

Todd Caswell is still on the loose, but animal rights advocates are seizing the Angel shooting as an opportunity to improve the system of justice for cows, among others.

A bipartisan group of legislators, including state Rep. Diana Urban (D-North Stonington), is introducing a bill that would allow court-appointed advocates for animals during legal proceedings that concern the animals’ welfare or custody.

It a logical extension of the near universal practice in the US judicial system of appointing advocates for those without a voice, and it will almost certainly be a big step forward in animal rights law (one they've already taken in Rhode Island). Unfortunately, we still only care about violence against animals as an indicator of future violence against humans.

Urban cited data, which she noted has been available since 1971, that point to animal abuse as an early indicator of violence against humans. She has already authored legislation, now a law, that requires cross reporting of animal-abuse and domestic-violence cases. About 80 percent of school shooters were once animal abusers, she said.

“I just want society to take this seriously,” she said.

It's too bad society won't take seriously shooting a cow in the face, fatally wounding her, just for thrills and then conspiring to conceal your crime unless it can be shown to somehow threaten human well being. Baby steps, I guess.

Connecticut Takes Their Cows Seriously

And why shouldn't they. There have been fascinating new developments in the Angel assassination case. I must say, as necessarily corrupt and unjust as our legal system inherently is, I find the seriousness with which they people of North Stonington are taking the death of the Palmers' cow both intriguing and--in the interest of confession--a little reassuring. Though the trigger man remains at large, they have caught the getaway driver and the owner of the truck and gun, both of whom are being treated with righteous severity. According to The Day, Judge John J. Nazzaro has declared Max Urso, driver and senior at Wheeler High School,

a threat to the community and ordered him placed on intensive pretrial supervision, including GPS monitoring and home confinement except for medical, legal and educational outings, while his case is pending.

This in addition to being held for a time on a $25,000 bond and being in the process of getting expelled from school. It is an overwhelming reaction to what, in the minds of many, amounts to little more than the destruction of private property. The Christian response to violence is, of course, forgiveness, something which ought to be counseled particularly to members of the same church as is the case here. Yet, a secular evaluation of the progress in the protection of animals from recreational cruelty cannot help but reassure.

I can be less conflicted about the response of the community to this travesty.

After the shooting, state Rep. Diana Urban, D-North Stonington, known as a champion of animals, established "The Angel Fund" at Chelsea Groton Bank to raise money for the Palmer family. More than $3,500 has been raised. Farmer George Palmer told state police the replacement cost of the cow is $1,500, veterinary fees were $139 and it cost approximately $200 in labor to care for and move the injured cows.

Palmer's son, Asa, had been raising the cows. He said Tuesday that he was angry that people he knew from school and church would do such a thing to the animals.

Angel Killer Caught!

It is only rarely that I am able to provide substantial follow-up for the countless bovine news that I share here, mostly because people are fleetingly interested in the goings-on in the cattle world, even if they condescend to report it. That is why I am grateful to the Bridgeport's Connecticut Post for staying on top of the slaying of Angel the Cow. Back in January, Angel and her Holstein companion were attacked in a drive by that left the Holstein hurt and Angel so badly wounded that she was euthanized. Now, it seems, the culprits have been caught:

State Police have arrested two men and are looking for a third in connection with the shooting of two cows at a North Stonington farm.

Troopers charged 18-year-old Max Urso of North Stonington on Tuesday with cruelty to animals and other crimes. Twenty-year-old Henry Williamson of Stonington was charged with hindering prosecution and making a false statement to authorities.

State police say they're also seeking 23-year-old Todd Caswell of North Stonington on animal cruelty and other charges.

According to Connecticut General Assembly website, it is "an unclassified felony to maliciously and intentionally maim, mutilate, torture, wound, or kill an animal" punishable by five years in prison, a $5,000 fine, or both.

If they'll keep reporting on it, I'll keep sharing updates.

Pulpit Freedom Sunday

There is a fairly simple test of validity for Christian civil disobedience, and Pulpit Freedom Sunday fails it. For those who haven't heard, Pulpit Freedom Sunday is an initiative put together by the Alliance Defending Freedom that has rallied the support of some 1,000 preachers to violate the law today by endorsing political candidates from the pulpit:

Pastors are hoping their bold move will prompt the IRS to enforce the 1954 tax code, the so-called Johnson Amendment, which prohibits tax-exempt organizations, such as churches, from making political endorsements. The law states it is illegal for churches that receive tax-exempt status from the federal government to intervene in “any political campaign on behalf of (or in opposition to) any candidate for elective public office.”

Alliance Defending Freedom, which is holding the summit, said it wants the IRS to press the matter so it can be decided in court. The group believes the law violates the First Amendment by “muzzling” preachers.

“The purpose is to make sure that the pastor -- and not the IRS -- decides what is said from the pulpit,” Erik Stanley, senior legal counsel for the group, told FoxNews.com. “It is a head-on constitutional challenge.”

It's a worthy enough cause, I suppose, from a secular standpoint, and I certainly sympathize with an interpretation of the First Amendment which ensures legal protection for political speech, even by non-profit employees. After all, Citizens United taught us that corporations are people and money is speech. It would be a travesty of common sense to accept that but reject the notion that preachers are people and sermons are speech. But, being the confirmed old Christian anarchist that I am, whether or not the preachers have a constitutional case is largely academic for me. I am more concerned with whether or not the this instance of lawlessness is permissible by scriptural standards.

The classic biblical justification for civil disobedience, the clear exception to the otherwise ubiquitous insistence on lawful submission to the state--rendering unto Caesar, being subject to governing authorities, honoring the king--is Peter before the high priest. At first blush, this would appear to be a sound justification for Pulpit Freedom. After all, the issues seems to be the high priest telling Peter and the apostles what they can and cannot preach. Surely, however, our interpretation cannot be so anachronistic as to believe that the principle at issue here was one of free speech and the independence of the church from state censorship. Those are not first century concerns.

The real issue, the obvious issue, the issue that has been recognized by countless thorough and even casual exegetes, is that the commands of the ruling authorities directly interfered with the proper exercise of Christianity (if I may--hypocritically and anachronistically--throw that term back onto Peter). This would be the grounds not only for the continued preaching of the apostles throughout Acts in spite of persistent official and unofficial opposition, but it would also be the rationale that made later Christians prefer martyrdom to burning incense for Caesar, made them refuse under threat of torture and death to renounce the faith, and, if I may let my examples be a little more tribalist, has caused countless conscientious objectors to suffer abuse and death at the hands of the state. In each case, what was at stake was not preference or rights but the essence of Christian living. When a conflict arises between the mandates of God and the mandates of the state, Peter makes abundantly clear what would probably have been obvious nonetheless. God takes priority.

The question then becomes whether or not candidate endorsements are essential to the practice of the faith or, to put it another way, whether or not I can be a good Christian without taking sides politically. Obviously, I spend more time wondering whether or not I can be a good Christian if I do partake of the fruit of the tree of the knowledge of Whig and Tory, but even those still hopelessly mired in the belief that there is no conflict between faith and politicking must surely admit that it is possible to be a good Christian without being a good Republican, a good Democrat, a good independent, or even a good citizen if we're defining that as active participation in the democratic process. Or at least I would hope most could admit that. Certainly, I can recognize that there is more than ample room for uncertainty in the realm of civil disobedience, particularly when ethical questions become more slippery than our neat categories of right and wrong can handle. But unless there is someone who would like to argue with me that abstention from politics is a positive sin, then there is no basis on which to believe that something as trivial as the violation of our artificial, contrived rights is grounds to break the law, man's and God's.

What we have here, the fundamental conflict for the Alliance Defending Freedom (and let it not be lost on anyone the use of "Defense" and "Freedom," those two favorite codewords for mobilizing aggressive, militant behavior) is not between what God commands and what the state commands but between what the state promised and what the state delivered. There's a disconnect, certainly, or at the very least a lack of clarity. In any case, a Christian--or any reasonable person, really--should not be surprised when civil government proves itself inconsistent, self-defeating, and oppressive. That's the nature of the beast and all the more reason to keep it out of our sanctuaries.

Meanwhile, because I abstain from politics I found myself regrettably compelled to abstain from church today as well. I only hope someone, somewhere had a bolder response. Perhaps, in messianic fashion, someone took a whip (figuratively) and drove the peddlers out of God's temple. A politician is certainly no less a robber than a vendor. If turning the holy place into a marketplace is enough to get the Son of God angry, do we assume he'll be any more pleased to see it turned into the Forum?

Religious Freedom, American Style

Here is a wonderful example of American religious freedom in action, in ways which don't center on ancillary disputes with theoretical Christians fringes and which present a direct and powerful contrast between the way Americans and Europeans treat the "eccentricities" of religious minorities:

California employers face new restrictions against shunting Sikh and Muslim workers out of public view for wearing turbans, beards and hijabs, under a bill signed Saturday by Gov. Jerry Brown.

The measure could affect workplaces from Disneyland to San Quentin Prison.

"This bill, AB 1964, makes it very clear that wearing any type of religious clothing or hairstyle, particularly such as Sikhs do … is protected by law and nobody can discriminate against you because of that," Brown told some 400 Sikhs and supporters at a rally of the North American Punjabi Assn. on the steps of the Capitol. Brown also signed SB 1540, which requires the state Board of Education to consider a new history framework for schools that the governor said will include "the role and contributions of the Sikh community in California."

Unfortunately, California has also proved its ongoing and incomprehensible commitment to reduce the history classroom to an instrument for producing political capital.

The Politics of Gun Control

I read Blake Zeff's recent article on gun control and found myself unexpectedly impressed. The piece begins with this simple premise:

There's a reason that nothing's happening to improve gun safety in America despite the mass shootings that now occur so regularly: No one in power is scared of the gun control movement.

And he proceeds from there to discuss not so much the "why" of gun control, which becomes so immediately repetitive in the wake of so many recent shootings, but the "how." Taking his cues from the movement to legalize same-sex marriage, he explores how gun control advocates need to be willing to invest financially in the cause and to take control of how the debate is framed. Both are pragmatic suggestions and both have worked very well for the same-sex marriage movement. It is an interesting exploration of the technology of politics.

Zeff also attempts to locate the major obstacle that gun control will face that same-sex marriage will not. For him, this is the established opposition represented symbolically (and fiscally) by the NRA. Now, I am skeptical that opposition movements to same-sex marriage can really be described as "relatively weak and poorly organized," except in places where it likely would have made no difference to begin with, but the political might of the NRA does make for a substantial hurdle to overcome.

Zeff does not, however, note a more crucial difference between the two movements. The press for same-sex marriage was, fundamentally, an attempt to expand a set of rights (as we conceive of them). Gun control, for whatever its merits may be, is an attempt to narrow a set of rights. It is critical to note that I am not saying that owning an assault weapon ought to be a right. For that matter, I am not saying getting married should be either. In simple pragmatic terms, however, where same-sex marriage has been permitted, people have been allowed to do something legally that they could not previously. Were gun control enacted, something that people could once do legally would no longer be licit.

You can frame the position as a libertarian one, as Zeff does. You can cite statistics about gun violence. You can appeal to examples of European nations with little to no gun crimes. You can reframe the parameters of the debate, restructure the narrative as much as you want. At the end of the day, Americans have a deeply ingrained cultural aversion to abridging rights. One need only look at Prohibition, that most dramatic of all prohibitive laws, and note that it took nearly one hundred years of temperance movements to see Prohibition amended to the Constitution and only thirteen years of spotty or non-existent enforcement to see it repealed. Once Americans have a taste of something or even the knowledge of the potential to taste of something, telling them they can't have it violates a spirit that permeates our society.

Zeff notes that the statistical data which shows a small majority of Americans in favor of at least some form of gun control is rendered pragmatically meaningless when the question of who will be motivated to translate those positions into votes. it is my suspicion that many people who will never own an assault rifle, even people who will never own a gun, when the time comes to decide whether or not to restrict a activity they have no intention of participating in, they will react viscerally and decisively. The Enlightenment sense of entitlement, of rights, is more essential to American culture even than Christian morality. To overturn it will require a more herculean effort even than the marginal gains that have been made toward legalizing same-sex marriage.

That is not to say it can't be done. It obviously can be. Americans have, from time to time and with varying degrees of permanence, broached new frontiers of government restriction of behavior. It is not typical, but it is possible. What's more, it is not even my intention to argue against trying to achieve gun control. While I recognize that pressing gun restrictions, even to the point that we already have, is antithetical to the spirit of those founders who drafted and supported the Bill of Rights, I also don't owe them any particular loyalty. I'd be happier in an America with fewer guns. Or no guns, since in my experience they exist primarily for sport hunting and violence directed at people--aggressive and defensive, licit and illicit.

All of that is beside the point. The point is that Zeff, while making an interesting and likely constructive argument for the mechanics of achieving gun control, fails to accurately grasp the problem of his parallel to same-sex marriage. This is not like knowing how to grow cucumbers and using that to learn how to grow squash. This is like knowing how to grow cucumbers and trying to use that to learn how to ungrow them. It's a whole different ball game.

The Great Foreskin Debate Continues

I honestly felt remiss in delaying so long sharing this, because I noticed it right when it happened. The German government, clearly responding directly to pressure from me personally, responded to the court ruling made several weeks ago now which declared religious circumcision illegal:

Germany's foreign minister on Sunday offered assurances that Germany protects religious traditions after a court ruled that circumcising young boys on religious grounds amounts to bodily harm even if parents consent...

Foreign Minister Guido Westerwelle said that a legal debate "must not lead to doubts arising internationally about religious tolerance in Germany."

"The free exercise of religion is protected in Germany. That includes religious traditions," Westerwelle said in a statement. "All our partners in the world should know that."

That's good to hear, Guido, but even weeks later, it would appear that many are unsatisfied with these kinds of toothless assurances. So frightening is the stance of the German government--apparently, just one of many European abridgments of religious freedoms--that the Germans have driven together Jews and Muslims for a common purpose:

In a joint statement from Brussels earlier this week, a group of rabbis, imams and others said that they consider the ruling against circumcision ‘‘an affront on our basic religious and human rights.’’

...The German ambassador to Israel told lawmakers in Jerusalem on Monday that the government was looking into whether laws needed to be changed.

‘‘For us the deadline is not tomorrow, but yesterday,’’ Goldschmidt said of possible changes to the law. In the meantime, however, ‘‘we say to the Jewish community ... keep performing the brit milah, and have no fear.’’

Unfortunately, it may be difficult for the Jewish community to heed this call, since "the president of the German Medical Association this week recommended that doctors cease performing circumcisions for religious reasons until the law can be clarified."

Holy Uncircumcised Penises, Batman!

Germany has become the first country (to my knowledge) to outlaw religious circumcision. While many countries have made cosmetic circumcision of children illegal, a court in Germany now says that religion is no longer a valid excuse:

Circumcising young boys on religious grounds amounts to grievous bodily harm, a German court ruled Tuesday in a landmark decision that the Jewish community said trampled on parents' religious rights.

The regional court in Cologne, western Germany, ruled that the "fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents", a judgement that is expected to set a legal precedent.

"The religious freedom of the parents and their right to educate their child would not be unacceptably compromised, if they were obliged to wait until the child could himself decide to be circumcised," the court added.

The fact that roughly one in every three males born into the world is circumcised in a practice which has been carried out continuously since the dawn of recorded history didn't seem to bother the German judiciary. After all, we are entering a brave new world, one that can put behind it the ways of life in the backwoods parts of the world where circumcision is still prevalent: Africa, the Middle East, Southeast Asia, Israel, Canada, the United States, and Australia. Thankfully, we have Germany to lead the way, standing on the cutting edge of oppressing Jews for nearly a century now. (I'm sorry. It was just too easy.)

This, it would appear, is what societies get when law and ethics become reducible to questions of conflicting theoretical rights. Being neither a Muslim nor a Jew and living in a country which permits circumcision with broad latitude, I don't really have a dog in this fight, except for my ideological consternation when I see courts ruling in favor of self-determination for infants. Because a baby has a right to a foreskin, a right which supersedes a mandate from G-d or Allah. That works if you're a secular court in Germany because you can touch a foreskin and you can't touch God, but that logic won't fly with the billions of unenlightened people in the world who think that the commands of their respective deities hold real weight.

The idea of self-determination for infants is, pragmatically, nonsensical. We recognize that infants require guidance and support in every area of life but at the same time pretend that parents ought to be raising them in a political, ideological, and religious void. Says the court: "The body of the child is irreparably and permanently changed by a circumcision. This change contravenes the interests of the child to decide later on his religious beliefs." Ignore for a moment the fact that the absence of a foreskin does not actually prevent little Fritz von Spielberg from growing up to be good secular humanist like every other European millennial and imagine what this self-deluded ideology of neutral child-rearing and apotheosis of choice looks like in practice. In the words of Stephen Prothero, "This is foolhardy, not unlike saying that you will not read anything to your daughter because you don’t want to enslave her to any one language."

It is the right, or more precisely the duty, of every parent to raise each child in the way the parent believes is best for its health and safety temporal and eternal. Democrats can raise little Democrats. Republicans can raise little Republicans. Sooner fans can raise little Sooner fans, and the children of Longhorn fans will continue to thumb their noses at them every fall at the state fair. More importantly, Christians can raise little Christians and would be rather perturbed to find a court somewhere ruling that baptism prior to eighteen "contravenes the interests of the child to decide later on his religious beliefs."

And Jews and Muslims ought to be able to raise their children up in the way they should go. That includes performing the defining and foundational right, at least in Judaism, on their children. Unfortunately, the Germans don't seem to agree, and who better than the German courts to decide for Jews and Muslims what unacceptably compromises their religious beliefs.

Science, Adolescence, and Legal Culpability

It is important to begin with the disclaimer that it is not here my intention to discuss moral culpability, particularly given that the focus will be on the possibility of a diminished culpability. I do not in any sense advocate acceptance of diminished moral culpability which would be inconsistent with a belief that morals operate in absolute categories. Moreover, with specific regard to adolescence, I have more or less entirely abandoned the self-serving and unbiblical doctrine of an age of accountability which had been taught me in my youth. As I get older (and hopefully wiser), I increasingly see the value in the historic Christian recognition of sinful impulses even in infancy. This is not, however, the place to argue either the absoluteness of morality or the moral culpability of children. Instead, I want to look at the possibility of a diminished legal culpability.

On this point, the recent Chardon High School shooting has caught my attention and specifically the recent indications that T. J. Lane will be tried as an adult. The legitimacy of trying minors as adults is, admittedly, difficult to navigate. The arbitrary nature with which American children are unceremoniously ushered into adulthood functions both to retard legitimate maturation in those still technically minors (consider the contentious age of consent laws) and to foist tremendous responsibility onto an unprepared, uninformed section of the populace (consider the rapidity with which teenagers are allowed to legally accrue massive student loan debt). There seems to be legitimate cultural argument both for treating the crimes of minors as intrinsically different and for occasionally ignoring that distinction when appropriate. The question is, and ought to be, how to distinguish between times when it is appropriate to recognize the unique legal status of minors and when it is necessary to ignore it. The state of Colorado offers three primary criteria for consideration:

• The age of the offender.
• The offender's previously criminal record.
• The severity of the crime.

At first glance, this seems like a relatively reasonable, objective rubric for determining the level of legal culpability for minors. Yet I wonder if perhaps the science which underlies our distinct treatment of minors might not reveal that one of these categories is

substantially weaker than the others. It is important to realize that the argument for a diminished legal capacity is not merely cultural but neurological. Studies on teenagers having shown that "impulse control, planning and decisionmaking are largely frontal cortex functions that are still maturing during adolescence...In sum, a large and compelling body of scientific research on the neurological development of teens confirms a long-held, common sense view: teenagers are not the same as adults in a variety of key areas such as the ability to make sound judgments when confronted by complex situations, the capacity to control impulses, and the ability to plan effectively. Such limitations reflect, in part, the fact that key areas of the adolescent brain, especially the prefrontal cortex that controls many higher order skills, are not fully mature until the third decade of life. Teens are full of promise, often energetic and caring, capable of making many contributions to their communities, and able to make remarkable spurts in intellectual development and learning. But neurologically, they are not adults."

With this in mind, it is easy to see why the age of the offender is a legitimate concern for determining legal culpability. After all, physical maturation is directly correlated to the ability of the brain to delay gratification. In lacking a fully functional ability to control impulses, positive and negative, adolescents cannot be held responsible for their actions at an equal level with adults who presumably have the ability to resist criminal urges. Certainly the case can be made that age is an inadequate indicator of physical and psychological development (hence the flaw in age of consent laws), but in the absence of a pragmatic alternative it makes sense to employ age as an important category. There is even logic to including the offender's previous criminal record, insofar as previous encounters with the judicial system ought to have acted as a catalyst for forming connections between criminal behavior and its consequences. Whatever may be said about the development of the frontal cortex in adolescents, even a dog can learn not to chew on your shoes after having been smacked with a rolled up newspaper a requisite number of times.

The connection between the severity of the crime and legal culpability seems less substantial. The scientific basis for trying minors as minors rests on what is tantamount to a mental defect on the part of teenagers. The adolescent mind lacks the necessary maturity--in an anatomical not a cultural sense--to entirely grasp the severity and repercussions of its actions in the moment. If not completely impotent, adolescents are at least severely disabled as they attempt to govern their baser impulses, maps out the consequences of their actions, and sympathize with a reality beyond their limited scope of contact and power. In other words, it is the very fact that a fourteen year old can shoot someone almost as easily as he or she could pat someone on the back which requires minors to be treated differently by the legal system. Given this psycho-physiological handicap, how can we include the severity of the crime in the calculation? It is the inability to conceive adequately of severity that constitutes the essence of the adolescent problem.

Which brings us full circle back to T. J. Lane. Admittedly, at seventeen, he is approaching the legal threshold for adulthood, and his ability to grasp the consequences of his actions in the moment may have been more developed than not. Certainly there is some question as to his background which may come to light as the judge debates whether or not to release his county social services record. Still, I cannot help but wonder if the push to have Lane tried as an adult has less to do with a reasoned philosophy of legal culpability and more to do with the blood lust of the community on behalf of the victims. After all, it is hardly overly cynical to suggest that Lane's crime warrants national attention and judicial rigor not because three people died but because they died in a white, suburban high school. (Based on CDC numbers, an average of eighty-four nameless, faceless people die every day in America from violence involving guns--some legal, most not.) Aside from race and affluence, what makes these deaths so heinous is that they were children, in a state of presumed innocence, whose lives did not deserve to be cut short when they had so much growing and developing left to do. I submit, that T. J. Lane, no less a child than his victims, deserves the same consideration.

Another Blow to the Myth that Secularism is Neutral

While teachers in religious schools may be sitting on the edge of their seats, Christian counseling students are breathing a sigh of relief today. In part of what is becoming a trend of high-profile legal victories for religious liberty, the 6th District U.S. Court of Appeals has ruled in favor of an Eastern Michigan University student who was dismissed from her program after requesting that a homosexual patient be allowed to be transferred to another counselor.

Julea Ward, a student in the university’s graduate level counseling program, had only four courses remaining to earn her degree when she enrolled in a one-on-one counseling practicum in 2009. As part of the practicum Ward was assigned a potential client “seeking assistance regarding a sexual relationship that was contrary to her religious convictions,” explained the Alliance Defense Fund (ADF), the legal advocacy group that represented Ward in the case. “Ward recognized the potential conscience issue with the client, and asked her supervisor how to handle the matter.”

After directing her to turn the client over to another counselor, EMU officials informed Ward that in order to stay in the counseling program she would have to undergo a “remediation” program designed to deal with her unsatisfactory viewpoint regarding homosexual relationships.

"Remediation" was apparently not pretty, and after undergoing what her attorneys described as an ideology-driven flogging by unsympathetic members of the faculty, Ward was booted from the program. In spite of this, she has won the day, and while I obviously disagree with Christians finding recourse for justice in the legal system, I cannot help but be glad that this basic right of conscience is being preserved in the system. In its report on the ruling, the court issued an important clarification, one which I first encountered in Stephen Prothero's Religious Literacy:

Surely, for example, the ban on discrimination against clients based on their religion (1) does not require a Muslim counselor to tell a Jewish client that his religious beliefs are correct if the conversation takes a turn in that direction and (2) does not require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues. Tolerance is a two-way street. Otherwise, the rule mandates orthodoxy, not anti-discrimination.

This critique hits the mark squarely. What the counseling department at Eastern Michigan was insisting on was an adherence to a competing ideology, one which endorses certain behaviors without qualification. The problem is a persistent one in the counseling field, and--in the very few courses in counseling that I have been required to take--I have heard horror stories from professionals who have been turned out of jobs, schools, and professional societies for an unwillingness to compromise their values and encourage patients to engage in behaviors which they believe to be ultimately destructive. This stretches beyond questions of sexuality. One such counselor shared that he had fought most of his career against the prevailing notion that there are times when it is appropriate to counsel a couple to divorce. Taking the biblical prohibition on divorce seriously, he refused to budge and (according to his rendition) has suffered as a result.

Certainly there are greater challenges being faced by Christians, even here in the religiously comfortable climes of theologically temperate North America. Still, there should be a strong sense of victory here both for Christians and proponents of religious freedom. After all, anti-discrimination has been slowly creeping (though, at times, it feels more like a headlong rush) closer and closer toward positive pluralism as a litmus test for academic, social, and professional acceptability. People have incorrectly confused disapproval with discrimination and have been too quick to infringe on each other's freedom to disagree. Even everyone's government-given right to be an idiot. That means that Christians can take principled stands (with such offensive attendant actions as referring patients to therapists who do not share their moral qualms, thus benefiting both patient and counselor), homosexuals can have left-coast parades in leather thongs, Westboro baptists can ascribe hatred and vindictiveness to God, occupiers can stand up for their incendiary, binary view of society by squatting on public land, and birthers can stack conspiracy theory on conspiracy theory until their house of cards crumbles. If this country is really committed to the kind of blind, non-intrusive freedom it claims to be, then that includes not only your freedom to be a heteroromantic asexual but also Julea Ward's freedom to refer you for treatment elsewhere and the Lutheran Church's freedom to not employ people who, contrary to clear Christian teaching, choose to settle Christian disputes in secular courts.

Compelling Morality: Our Redundant History

It is in no sense an overstatement to say that Gaines M. Foster's Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865-1920 is a near perfect blend of historical insight and timeliness. Foster's simple book has simple scope: the examination of the rise of the Christian lobby in late nineteenth century America and the moral legislation it pursued. He makes clear, however, from the first sentence of the introduction that this is not intended to be a purely academic exercise. The rise of the Christian right in the late 1970s has made matters of the origins and precedents of religious lobbying and moral legislation issues of extreme importance for contemporary American moral polity. Foster convincingly suggests that the strongest, most germane parallel to the modern movement for moral reform is the late nineteenth century campaign to revise the moral character of the nation. The rise of the Christian lobby was more than merely a political shift or, as the lobbyists undoubtedly believed, an awakening of the American moral conscious in the face of some novel evil. It was a dramatic cultural and philosophical shift away from antebellum theories of states' rights, personal liberty, and moral suasion into new concepts of nationalism and corporate social responsibility. In this, and countless other nuances of Foster's book, there are striking ideological parallels to more recent impulses in American politics. In the interest of brevity, however, there are two points from Foster's work which stand out as especially noteworthy for reflection.

One of the most striking features of the Christian lobby, which Foster deliberately emphasizes in his narrative, was that even in its successes it understood and respected (or at least conceded to accept) the Constitutional limits of the federal government. There is little debate any longer about whether or not the federal government has some role in structuring national morality. As Foster will admit in his conclusion, few people object to the federal government having a hand in, for example, protecting children from the sexual advances of adults. In truth, most Americans probably do not even think of this in terms of the government legislating morality, though that is certainly what is occurring. As desensitized to the concept as modern Americans are, the idea that the government should make any universal laws regarding any morality was entirely foreign to early Americans. In fact, the Thirteenth Amendment represented something of a strange and wonderful novelty to nineteenth century Americans. They accepted that slavery was wrong (though some, only after being compelled by force of arms to accept that opinion), but that the government could seize the right to make that qualitative judgment was unusual. The Thirteenth Amendment would prove to be the justifying precedent cited most frequently by moral reformers.

Even with this powerful antecedent, the Christian lobby was forced to respect that most Americans understood the federal government to be restricted to a very small number of jurisdictions: interstate commerce, international treaties, administration of the military, and direct governance of the District of Columbia and the territories. In view of these limitations, the moral reformers were forced to pursue their agenda of national moral legislation within the confines of a traditional view of a limited federal government. They focused their efforts initially on enacting Sunday laws in DC, stricter divorce rules in the territories, prohibition in the military, and the restriction of interstate distribution of obscene materials (e.g. information on birth control). They understood that they could not make adultery illegal, but they did eventually convince the government that it had the power to make transporting a woman across state lines for the purpose of adultery should be. Even when the moral reformers did make their final push to outlaw the production and sale of all intoxicating beverages, Prohibition came with two important concessions to the limits of federal power. First, reformers readily admitted and accepted that Congress could not simply pass a law to achieve prohibition. A constitutional amendment would be necessary, as the Constitution did not give Congress the kind of sweeping moral power to outlaw behavior that the Christian lobby required. Second, in spite of initial attempts to include it, the provision which made possessing and consuming alcohol in one's home was removed from the wording of the amendment. The country was not ready to accept the idea that the government had the right to regulate moral behavior within one's own home. What authority it had, stopped at the domestic threshold. The home was a fortress, even if it was a den of wicked vice.

In addition to recognizing and working within the constitutional limits of the federal government, the history of the moral reformers teaches contemporary reformers and important lesson about the impermanence of moral reform. When the Volstead Act finally took effect, enforcing the Eighteenth Amendment, the reform periodical American Issue triumphantly declared, "The future historian will accord to January 16, 1920 a place second only to that of the advent of the Redeemer." Historians have a funny way of defying predictions. No one would today suggest that the onset of Prohibition in the United States was an event of permanent and global magnitude. Few school children know anything more than a passing quick fact about the Eighteenth Amendment and even less about the myriad moral reforms which preceded it. Even to the most conservative modern critic, the goals of the Christian lobby in the late nineteenth and early twentieth century seem antiquated if not comic. While many still oppose, largely futilely, ready access to abortion, on the most marginal members of society think it ought to be illegal to distribute information about birth control. Boxing, while not America's proudest past time, is legal to stage, promote, record, and distribute. (Imagine what the moral reformers would have thought of the mixed martial arts craze which has gripped the popular imagination.) The film industry not only escaped government content controls, but modern technology has made it possible for anyone and everyone to pipe any number of genuinely obscene pictures onto their computers, televisions, and telephones. Perhaps most notoriously at all, Prohibition was a miserable failure and social drinking (unlike boxing) is among the great American past times. From a historical perspective, efforts at national moral reform appear to have been the most dismal failure. Only a select few reforms from the period persist in any recognizable form: higher age of consent laws, laws against selling cigarettes to minors, and the end of mail delivery on Sundays. In his conclusion, Foster suggests that "the story of moral reconstruction provides no sure lessons to be applied to the renewed debate over legislating morality...but it does provide a historical context." Yet this historical context may in fact be the sure lesson which moral reformers need to learn; history has proved that it will be infinitely easier to repeal moral legislation than it was to pass it. It took the reformers nearly sixty years to enact prohibition through a constitutional amendment and only thirteen years for Americans to collectively regret and reject prohibition through another amendment.

There can be few complaints about Foster's work. Admittedly, it is dry, deeply encyclopedic reading which at times carries with it the uneasy feeling that one is actually just reading the congressional record. This impression is reenforced by the final eighty pages (or one quarter) of the book which is consumed by extensive appendices, notes, and other scholarly apparatus. At the same time, this exhaustive treatment reassures the reader that Moral Reconstruction is among the most well researched treatments of the period and subject that has yet been written. Though not a page turner for the average reader, the book is worth a second glance and more for professionals or dedicated hobbyists interested in grasping the historical context of ongoing movements among Christian especially to legislate a better moral polity for America.

A Touch of Confusion

Explain something to me: if a state university cannot be sued for breach of contract because of "sovereign immunity," then what is the point of universities signing contracts with individuals at all? And should professors, administrators, coaches, and custodians really feel safe with the supposed protections built into their contracts with the state?