Justice Jackson on Religious Frauds, Easter Bunnies, and Judging

I was recently reminded of Justice Jackson's brilliant dissenting opinion in U.S. v. Ballard; it's much worth reading in its entirety (it's mostly about whether someone could be prosecuted for fraud in religious fundraising), but here's one passage:

I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud…. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables. Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges.

It is hard in matters so mystical to say how literally one is bound to believe the doctrine he teaches and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money…. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or legacies? Such inquiries may discomfort orthodox as well as unconventional religious teachers, for even the most regular of them are sometimes accused of taking their orthodoxy with a grain of salt….

Comments

[Stephen Lathrop]

With regard to writing and reason, Justice Jackson sets a standard few others have approached. But I do wonder why that is. With so many tens of thousands of learned potential candidates, why shouldn't every Justice at least approach the quality of reason and writing Jackson demonstrated? It seems to me if that were the default standard, and Supreme Court appointments relied upon it above other standards, then much of the concern about partisanship and other jurisprudential vices would become much less.

[Queen Amalthea]

Reason is, and ought only to be the slave of the passions...

[Cal Cetín]

That's not what I feel. Prove me wrong.

[SKofNJ]

Yes, except everyone says that Kagan writes well.

[bye]

I am a teacher, one of the big tipoffs of a lazy, unthinking student (who's gotten through the school system so far) is really good writing. Nothing to say, nothing firmly held, no real passion for truth --- but a glib big vocab artillery and a pompous over-stated gild the lily writing style.

They are discovered in a Math class or a Latin class. 2+2 =4 whether you are Yogi Berra or Cicero

[Cal Cetín]

Jackson didn't just write well for a lawyer, he wrote fairly well for a writer.

By coincidence or not, he was the last Justice who (at least in part) relied on the apprenticeship (or Lincoln) method of learning law. He did attend law school (says Wikipedia), but apparently not enough to fully ruin his writing skills.

Saying he could *write* is not the same as saying he was *right.* People can be eloquently wrong.

For example, Jackson was the Wickard v. Filburn guy.

Or to put it in hippie liberal terms, he provided the precedent for the federal ban on marijuana.

[bye]

Yet with appointers like the unbelievably stupid,lazy, and poorly-spoken Biden you are blaming fish and not the stockers of the lake.
Kagan, Sotomayor, Jackson --- all obviously sub-standard

How soon you forget or excuse
Justice Sonia Sotomayor vastly overstated the number of children with COVID-19 who are in “serious condition.”

“We have hospitals that are almost at full capacity with people severely ill on ventilators,” she said. “We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.”

According to the latest data from the U.S. Department of Health & Human Services, there were about 4,700 children

[Queen Amalthea]

It's indeed a tough one and an increasingly critical one, I think, because there's lots of reason our nation is supposed to protect people's religious exercise and we've got a legal elite that is increasingly thinking that religious exercise warranting protection can be quite broad indeed. The 'substantial burden' of the RFRA, for example, has essentially become a nullity (though I have no idea how this can be addressed without undercutting our proud and I think good tradition of protecting religious dissenters).

[Illocust]

It only seems that religion has become something outsized in its protection because the courts have refused to stop the USG when it tramples over rights in other areas. If the fed was restricted as it should be from imposing on every day life the religious protections would seem non existent.

[Johnious Doughious]

Mind reading is the God-given power of the jury.

[bye]

You have it just about backwards.
God gave us a mind to use, we are fallible, so we depend on God to polish our best efforts.
A jury is a group of people that knows something serious cannot just go unnoticed and they do their best.

[Dan Schiavetta]

I wonder how this analysis applies to the Catholic Church's First Amendment litigation. The "beliefs" it is arguing to "protect" -- against gay marriage and birth control, for example -- are by now disagreed with by the great majority of churchgoing Catholics. It's not going too far to say that the bishops are laughingstocks to their own flock. When does this pass over to "fraud"?

[Rossami]

That's easy. It passes over to fraud when the belief is not sincerely held.

Note that it only has to be sincerely held by the one person making the statement. The Catholic Church may profess to speak for all Catholics but that's about as dispositive as AARP claiming to speak for everyone over 65 - that is, not at all. So long as the bishops sincerely believe what they are testifying to, the threshold is met.

[Dan Schiavetta]

Most bishops at this point do not sincerely believe official Church doctrine on these topics. Clergy at the parish level certainly do not. One can easily guess the psychic mechanisms at work: 1) bureaucratic inertia; 2) professional self-preservation; 3) professional ambition; 4) unwillingness to face one’s secret shame and guilt (possibly half of all Catholic clergy are gay); etc.

[Gandydancer]

That's a nice package of speculations, all irrelevant unless you can prove that the entity bringing suit is insincere. Good luck with that.

[David Nieporent]

Um, never?

[ReaderY]

This way of thinking exactly - “they can’t seriously believe this shit, so it must be fraud” - is exactly why Justice Jackson argued for setting the fraud bar high.

If it weren’t high, people like you would be finding everyone who disagreed with you on anything you felt really strongly about guilty of fraud

[Darwinnie]

“ If it weren’t high, people like you would be finding everyone who disagreed with you on anything you felt really strongly about guilty of fraud.”

Paging Donald Trump, paging Donald Trump.

[Darwinnie]

Except I don’t think Trump believes really strongly about anything but himself.

[Cal Cetín]

Which raises the question - why did a decisive bloc of voters, in 2016, vote for such a crude narcissist in preference to the Democrat? What was wrong with the Democrat, that so many people (including former Obama voters) saw Trump as preferable?

Thank goodness this anomaly in the space-time continuum was corrected, and now we're back to a President who isn't corrupt, so we no longer have to consider the alienation revealed among voters five years ago. Not only is everything back to normal, we can all built back better.

[santamonica811]

Hillary Clinton was hated (in the political sense) by a huge segment of the population. Some of the reasons for this were her last name (ie, her obvious connection to Bill Clinton), her role in trying to pass health care during her husband's presidency, her sex (IMO). Donald Trump's election is enough to make one believe in God...about 5 different things had to happen, in order to make him electable. Have an unpopular (with a big chunk of voters) opposing candidate, have her ignore much of the Midwest states in her campaigning, have James Comey violate norms and put out damaging information just before the election, have James Comey deliberately hide from voters that Candidate Trump was being investigated at the same time, and so on. Trump threaded the needle, and won. Hard to do a second time, in 2020. But we'll see about 2024 . . . it's certainly not crazy to think he can win again 3 years from now. (Alas)

[Cal Cetín]

In contrast, we should all be grateful that Biden managed to win without anyone suppressing damaging evidence about him, or intelligence agencies trying to smear his opponent.

It was a clean victory , and the rubes even managed to ignore Harris' sex and race.

[Gandydancer]

Comey was of course engaged in suppressing the emergence of negative information about Clinton, and wouldn't have said a think had not the Abedin laptop been successfully suppressed.

Yet you also complain that the bogus investigation of Trump was not promoted.

Not a word in your list of factors about the Invasion, now so thoroughly resuscitated.

The denial is strong in you.

[Gandydancer]

...Aaargh. I hate the inability to proofread and correct.

It's "...a thinG" and "....had the Abedin laptop been successfully suppressed."

[santamonica811]

You don't have to get to the merits of any eventual investigation to see this as a silly counter-argument. There was an investigation of Trump going on at the time. Only a liar or a fool is saying that, AT THAT TIME, it was clear that it was a nothing burger. (I remain unconvinced that Trump or his team was exonerated by the investigation...you obviously reach a different conclusion.) But, as you would agree, there is zero dispute that Comey made a conscious decision to drop a bombshell on Clinton, at a time designed to cause maximum political damage, while also deliberately hiding from all Americans the ongoing investigation of Trump. I gather that you support both of Comey's decisions. I, respectfully, disagree.

[On the other hand; I have zero sympathy of much of Hillary's political troubles, as she either destroyed (intent) or allowed to be lost (massive negligence) a crapload of emails from her "server." Therefore, we all were/are entitled to think the worst about all these emails, just as a jury is entitled to think the worst about spoliation evidence in a trial. If she, in fact, did nothing wrong and hid or lost nothing that was actually damaging politically...she sure bent over backwards to look as guilty as possible in re that situation.]

[Brett Bellmore]

It was not publicly clear that it was a nothing burger. The FBI knew it was a nothing burger quite early in the process, and kept that information from the FISA court while requesting warrant renewals, though.

"But, as you would agree, there is zero dispute that Comey made a conscious decision to drop a bombshell on Clinton, at a time designed to cause maximum political damage,"

The "bombshell" was assigned him by Lynch. On the contrary, rather than causing maximum damage, or clearing her, he tried to salve his conscience by having it both ways: Sparing her prosecution, while making it clear she was guilty, by inventing a fictional "intent" element for a statute that was deliberately written to be strict liability.

[Rossami]

In my opinion, Comey's revelations had almost nothing to do with the election results. I would replace those with intentional attempts by certain media players to manipulate the election - attempts which rather dramatically backfired. Specifically, they gave little coverage to the mainstream candidates during the Republican primary and gave lots of free publicity to the "unelectable" outsider. Similar missteps by pundits continued into the general election.

[santamonica811]

Trump was on "Morning Joe" so often, the show was widely referred to as "Morning Trump" in 2015 and 2016. Your point is well-taken. Of course, Trump's rivals in the primaries were feckless and toothless for the most part. Witness Ted Cruz's whoring of his integrity, with his outrage over deeply personal Trump insults of his wife...outrage that seemed to last about as long as the lifetime of the average mayfly. I mean; cowardice hardly motivates media to cover you. My fantasy, if there had been more media coverage of other candidates:

"Senator Rubio. You have been painfully silent about Trump's horrific comments about __________. Would this kind of craven and yellow-bellied lickspittle behavior by typical in a President Rubio administration?" I guess I would have enjoyed more media coverage like that. (Disclosure: I voted for Trump in the primary, and did my usual write-in for Jon Huntsman in the general.)

[Brett Bellmore]

In fact, the MSM so misunderstood the right end of the electorate, that they actually thought they were doing him damage when reporting his policy positions, and only late in the game realized that they had to attack him without revealing anything he actually said.

[Rev. Arthur L. Kirkland]

" Which raises the question – why did a decisive bloc of voters, in 2016, vote for such a crude narcissist in preference to the Democrat? "

Racism. Anxiety fueled by economic inadequacy precipitated by a lifetime of bad judgment. Obsolete misogyny. Dislike of modernity lathered by the worst elements of childish superstition. Backwater envy toward successful, educated, modern communities and institutions. Disdain of credentials, education, science, and progress. Gullibility. Old-timey gay-bashing. Antisocial tendencies built during a half-century of getting thrashed in the culture war. Low-grade fear of immigrants. Lack of education, marketable skills, and character. Stupidity. Desire to impose pain on the American mainstream.

[TwelveInchPianist]

Racism is why Obama voters voted for Trump?

[bye]

Dan, you are stupid enough to be in the Guinness Book
Gay marriage and birth control are moral topics the Church has addressed. You are the one that Pope Benedict and ST Augustine used for illustration
Pope Benedict Judas Iscariot who "could have left, as many of the disciples did; indeed, he would have left if he were honest." Instead, he chose to remain with Jesus. Not because of faith or love, said the Pope, but out of a secret desire to take vengeance on his master.

Augustine — 'If you believe what you like in the Gospel, and reject what you don't like, it is not the Gospel you believe, but yourself.'

Dan "judas' Schiavetta -- you don't accept the Church then don't hang around like a hypocrite hoping to destroy her teaching

[Cal Cetín]

Jackson was dissenting...does that mean the majority opinion is still good law?

If so, then if (hypothetically) there were government officials hostile to religion, and *if* Jackson's prognostications were correct, then those officials would be using the *Ballard* case a lot.

Conclusion: Government officials aren't hostile to religion.

(Or Jackson was overstating the case, but that would be impossible.)

[Gandydancer]

U.S. v. Ballard is indeed, so far as I know, still good law. It didn't hold, however, anything like what you seem to think it held. How "government officials hostile to religion" might make use of a holding that "religious views...are [not] subject to trial before a jury charged with finding their truth or falsity" is non-obvious. Your conclusion ("Conclusion: Government officials aren’t hostile to religion") therefor wouldn't remotely follow from an alleged paucity in its use as precedent.

[Cal Cetín]

"(Or Jackson was overstating the case, but that would be impossible.)"

...should have been a hint that I was being sarcastic, but to make it explicit, I'll just add

/sarc

[santamonica811]

[I also missed your sarcasm...although I can see it now, on a second read.]

[bye]

Don't know why you quote that, the withering blast in the Masterpiece case is sufficient

the Colorado Civil Rights Commission compared a Christian cake artist to slave owners and perpetrators of the Holocaust when the commission ordered him to re-educate himself and his employees about marriage.

July 25 commission hearing transcript from last year in which Commissioner Diann Rice makes the following comment just before denying Phillips’ request to temporarily suspend the commission’s re-education order:

“I would also like to reiterate what we said in…the last meeting [concerning Jack Phillips]. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust… I mean, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use – to use their religion to hurt others.”

HERE IS THE SUPREME COURT
It was too much for Justice Kennedy and six of his colleagues:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners.

[Cal Cetín]

Sifting out people who are sincere-but-wrong is actually an exercise in which the government has a bit of experience. Courts, draft boards and the military authorities have often confronted cases of draftees or soldiers claiming to be sincere pacifists. Obviously, the government disagrees with these dissenters "on the merits," but they still have to measure sincerity.

[Gandydancer]

The government has a lot of experience confronting the issue of the sincerity of belief but we have little experience of it doing so convincingly. Usually it's who, whom.

[arch1]

Why all the contortions and special pleading on behalf of religious dogma? Beliefs are beliefs.

[Gandydancer]

In the real world some beliefs are more equal than others.

[Rev. Arthur L. Kirkland]

I doubt that approach will prevail over the long run</a..

The American future will not be kind to superstition. Enjoy it while you can, clingers.

[bye]

Rev makes the same error he seems to be criticizing !!
He doesn't know the future and his reply is to a person talking about here and now. True, 'more equal' is talk used to avoid clarifying wht you are thinking but still it is something based on experience. Rev always acts the prophet and is usually wrong insofar as what he says is testable.

[bye]

Only in the sense that until you know the whole truth you still know the Truth but you don't know what is known as the Hierarchy of Truths.

IN RC this is a big insight
(CCC, #1)
These five foundational truths of revelation are invoked throughout the Catechism and provide a framework in which all doctrine finds its proper context. They are:

The Blessed Trinity: God is an eternal loving communion of Father, Son, and Holy Spirit
The Person of Jesus: A divine person who took on human nature in the Incarnation
The Paschal Mystery: the suffering, death, resurrection, and ascension of Jesus Christ
The Dignity of the Human Person: made in the image and likeness of God
The Church: the Body of Christ brought to life in the Holy Spirit

[bye]

“There are two kinds of oughts, and there are two ways to be wrong about something. We can be wrong by being irrational, or we can be wrong by being unethical. Morality deals with the second.”

wo transcendent points of reference in America’s civil religion:

1. The idea of the limitation of human beings, including political leaders, and
2. The concept of unalienable rights, civic ethics. These two ideas have direct relevance to religious institutions.

[qlangley]

If Jackson had prevailed it would be difficult to prosecute anyone for fraud.
Bernie Madoff would simply have to have said that he had a sincere religious belief that his investments would pay off, or simply that people ought to have sent him money.
No-one would be allowed to second guess his sincerity.

[bye]

But
Bernie did not say that
Fraud is in what you do and not why
Sincerity does not preclude the legal requirement of due diligence. Qlangley talks out his ass and does no research (which seems to be the case) that is fraud. You pretend to know what you do not know.

[Thomas Allison]

Now a days lots of relegious frauds happining.

[Thomas Allison]

Here is some Easter bunny Images: https://happyeasterguide.com/easter-bunny-pictures-images-quotes.html

[bye]

But you are being illogical and abusing words.
Just because you use religous language that does not make you religious!! What is happening nowadays is that the same people who will be around til the world ends are met by stupid uninformed clods and are taken for a well-deserved ride.