Diskeeper loses on Summary Judgment motion

On May 21, 2009, the Los Angeles Superior Court ruled against Diskeeper's Motion for summary judgment in its case against Godelman and Le Shay, although it did find for Diskeeper in part by preemptively removing the availability of punitive damages from the case, likely to prompt settlement. Jury trial is now set for July 13, 2009 [PDF], and is estimate to run 14 days. The Court issued separate rulings(Godelman ruling [PDF]; Le Shay ruling [PDF]) with regard to Diskeeper's summary judgment motion to reflect the minor factual differences in the plaintiffs' cases. One other difference is that the Court accepted Diskeeper's argument that Godelman failed to show that he sought a reasonable accommodation in lieu of of Hubbard Management Technology.

But the news is largely good insofar as a jury is now scheduled to decide (amongst other things) whether Hubbard Management Technology is religious in nature. An adverse ruling for Diskeeper will greatly decrease the ability of other Scientology front groups to intrude into various secular spheres.

I don't have the time to delve too deeply into the Court's rulings, but I did perform some light research into a matter which seemed odd to me: that being the Court's having removed punitive damages as an available remedy before trial. In American Airlines v. Sheppard, the state appeals court ruled that California's "clear and convincing" evidentiary standard for punitive damages "does not impose on a plaintiff the obligation to 'prove' a case for punitive damages at summary judgment." In other words, the Court prematurely ruled on punitive damages, which may yet be borne out at trial. I'm not a California lawyer, however, and so it's not clear how this will play out.

For now, however, we can look forward to a trial.

Souter's concurrence in Lee v. Weisman

David Souter's announced retirement from the Supreme Court today is somewhat of a blow to establishment clause separationists, for whom there was no more eloquent a proponent than Souter. I've come back to Souter's inspired concurrence in Lee v. Weisman more than once, so I thought I'd post some of that concurrence here. In Lee v. Weisman, a 5-4 majority found unconstitutional a public high school's practice of inviting clergy members to deliver invocations and benedictions at graduation ceremonies. Souter joined the majority and in his concurrence (joined only by Stevens), began with a principle once the majority opinion

Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others.

The defendant school district in Lee v. Weisman, aware of its constitutional liability, sought to quell it by ensuring that the invocation (to be given by a Rabbi) be "denominationally neutral". The invocation would consist of generalized religious platitudes as opposed to specific denominational creeds.

Souter brilliantly countered this tack, first by offering a clear line of cases holding unconstitutional government preference for religion over irreligion; then by presenting a contratextual analysis of the establishment clause through its historical incarnations, interpreting its meaning by exhaustively comparing the rejected versions to final version:, finally concluding:

Though it accepted much of the Senate's work on the Bill of Rights, the House rejected the Senate's version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general.

Souter establishes that the framers repeatedly and deliberately edited the clause to exclude incarnations of a modified or specific "religion," finally settling on "religion" in its most general sense, and argues that the only reasonable inference to be drawn is that their intent was to prohibit the federal government from favoring not only religion x, y, or z, but from favoring religion, period. Souter's textual reading cannot be easily dismissed because, as he makes clear, the drafters of the Constitution explicitly considered the linguistic implications of each option before settling on the broadest one.

Souter goes on:

While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between "sectarian" religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable tothe competence of the federal judiciary, or more deliberately to be avoided where possible.

If the government is permitted to advance a supposedly non-sectarian, or civil, religion, the Court will inevitably be thrust into the position of deciding whether a particular religious expression is sufficiently watered down and non-ecumenical to pass constitutional muster, and the Constitution plainly prohibits this. Souter explains why:

Nor does it solve the problem to say that the State should promote a "diversity" of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious presidential proclamations, the practice of sponsoring religious messages tends, over time, "to narrow the recommendation to the standard of the predominant sect." Madison's "Detached Memoranda," 3 Wm. & Mary Q. 534, 561 (E. Fleet ed. 1946) (hereinafter Madison's "Detached Memoranda"). We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes.

This is a point rarely advanced, but quite important: if government endorses a homogenized version of religious belief, it will effectively "crown a winner" from amongst religious competitors, and further, I'd argue, incentivize said competitors to match the religious message.

Souter then ably confronts the traditional counterargument--i.e., U.S. presidents, dating to around the time of the constitution's drafting have issued generalized religious proclamations in inaugural addresses and Thanksgiving Day addresses, so therefore the framers could not have viewed the establishment clause as prohibiting state preferences for religion, generally:

The argument ignores the fact, however, that Americans today find such proclamations less controversial than did the founding generation, whose published thoughts on the matter belie petitioners' claim. President Jefferson, for example, steadfastly refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses. [...] During his first three years in office, James Madison also refused to call for days of thanksgiving and prayer, though later, amid the political turmoil of the War of 1812, he did so on four separate occasions. Upon retirement, in an essay condemning as an unconstitutional "establishment" the use of public money to support congressional and military chaplains, he concluded that "[r]eligious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers." [citations omitted]

As for the presidents who, like Washington and Adams, unapologetically introduced public thanksgiving proclamations and prayer, Souter explains that "some Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next." Which goes on to this day, as evidenced by Bush's and now Obama's Office of Faith Based Initiatives, amongst a litany of other examples of impermissible government-religion cross-pollination.

By the time Souter wrote his concurrence in Lee v. Weisman, his view on the establishment clause had already become descendent, as Protestants and Catholics had been migrating to Evangelical megachurches, which openly preached sought government endorsement, and politicians wasted no time in openly courting this new, identifiable religious demographic. Indeed, his concurrence was only joined by two other Justices (Stevens, and somewhat mysteriously, O'Connor, whose later opinions would repudiate Souter's view here), although Souter was also part of the 5-4 majority. But Souter's more expansive concurrence represented an incisive, sensible view of the establishment clause that likely won't be seen for some time, to our detriment.

Resurrection Clause = Prosecutorial Misconduct?

I rarely dive into sensationalist crime but this story about a mother, Ria Ramkissoon, accused of starving her son to death at the suggestion and behest of her fellow cult members (because he failed begin his dinner with an "amen") is interesting because of the unusual plea agreement into which she entered.

Members of the 1 Mind Ministries (could there be a more obviously cultic name?) apparently believed that the dead child, named Javon, would be resurrected:

After he died, Antoinette laid Javon's body on a couch, and the others knelt and prayed while Ramkissoon danced around the body, Assistant State's Attorney Julie Drake said. The group carried his remains in a green suitcase when they later moved to Philadelphia.

The mother, facing a 20 year sentence, pled guilty in exchange for her cooperation in testifying against other cult members, and (here's where it gets interesting) on the condition that she be permitted to withdraw the plea if her dead son had a "Jesus-like resurrection" (as distinguished from a reincarnation into an animal or object).

The deal offered to Ramkissoon by prosecutors seems fair enough, or at least within the bounds of reason--one might quibble that, as a mother, she bears the same if not more culpability as the cult leaders the prosecutors are apparently gunning for; and someone else might quibble that, as a cult victim, she bears no responsibility whatsoever.

But what interests me more is the so-called "resurrection clause". Obviously Ramkissoon's son is no threat to rise from the dead and moot his mother's guilty plea, so why was this even offered? I think it's important to determine the degree to which this offering from prosecutors played into her decision to plead guilty; and whether she would not have pled guilty had she not been so offered. If so, can it be said that her plea was coerced? Generally speaking (laws differ state to state, and I've not looked at Maryland's statute), a guilty plea must be entered into voluntarily and knowingly, and the suspect must understand the element of the crime to which he/she has pled. It seems to me that Ramkissoon's plea deal, by its ridiculous nature, might demonstrates her lack of understanding.

In defense of Thomas Mills and the judge who granted his wish that his children not be homeschooled

Some Christians are up in arms over a North Carolina family court's order last week that mother Venessa Mills discontinue homeschooling her children and send them to public school instead. After reading the news coverage, and then reading the order [pdf], I think the court got it right, and for the right reasons, few of which directly relate to homeschooling. If anything, this was an anti-cult decision, not an anti-homeschooling decision.

Yet, the vast majority of articles and opinion pieces are keyed only to the fear and outrage that this decision somehow spells apocalyptic doom for homeschooling. Take T. Keung Hui of the Raleigh News & Observer, whose allegedly straight news report on the decision begins:

Home-school groups and conservatives across the country are infuriated by a Wake County judge's declaration that he will make a North Raleigh mother stop teaching her children at home and send them to public schools.

L.A. Williams of the Christian Action League, similarly leads with:

Home Education Week in North Carolina kicks off Sunday (March 22) amid a firestorm of controversy surrounding a Wake County divorce ruling that will send three home schooled children into public school against their mother's wishes.

Keung doesn't even alert readers to the fact that the children have a father, Thomas Mills, until the 14th paragraph of the article (L.A. Williams, from whom an expectation of bias seems more natural, also first mentions the father in the 14th paragraph), despite that the father and mother requested that the court to settle their dispute as to how the children shall be educated. Yet these articles, and many others, frame this story as one where a court is arbitrarily imposing its will to destroy homeschooling, as opposed to what it is--a disagreement between parties who have to equally share decision-making power as to how the children are raised. Why should the father's wish that the children not be homeschooled not be taken into account--or at least mentioned in one of the first few paragraphs?

If the facts led the court to conclude that homeschooling was in the best interests of the children, which it may have decided had the facts led it to such a conclusion, this story wouldn't have made a ripple in the media pool. But the story has gained national interest, the attention mostly coming from homeschooling activists who see this decision as a threat to their way of life. In its rush to condemn the decision, however, it appears that they either have failed to grasp it, or are deliberately and disingenuously ignoring key facts.

The first ignored fact, as mentioned, is that the court was called upon by both parties to resolve a stalemate--it did not swoop down like Janet Reno on an unsuspecting Elián González and pry the children from their mother's arms kicking and screaming to public school. The parents genuinely disputed how to best educate the children, and the court addressed the matter just as every other court in the country would have--by determining the best interests of the children, which is not necessarily the same thing as the best education for the children, although it would most often work out to be the same.

This takes me to the next ignored fact--the mother has chosen to immerse herself in a cult which, as cults almost always do, urges member to actively disconnect from their non-believer friends and families. And the children's mother has done just that. According to Thomas, "Venessa Mills became unrecognizable as the person I had married. She withdrew emotionally from me."

Her longtime friend--they were each other's maids of honor--Shanna Winker-Hanson, testified that "In the last four years, since her joining the Sound Doctrine church, Venessa has pushed her loved ones away. She has become more and more distant with me."

Venessa's mother, father and sister even testified against their own blood relative, expressing their concern as to "Venessa's involvement with Sound Doctrine and are particularly concerned about the affect [sic] on the children." This obviously played a large part in the judge's decision, yet is hardly touched upon by Venessa Mills' many defenders.

The church to which Venessa belongs is run by Tim and Carla Williams and is located in the state of Washington--quite a ways from North Carolina. Tim and Carla have engendered no shortage of vocal detractors amongst ex-members, many of whom testified on behalf of the father. Ex-members characterized Sound Doctrine as "cult-like and manipulative" in affidavits, and claimed that it teaches members to "break" their children to establish authority, and subjects them to harsh work regimens. Perhaps most troubling were affiants who testified that Tim Williams would often speak about pre-teen children in a sexual manner; Tina Wasik testified that:

Tim Williams told me that my oldest daughter (then age 12) was the kind of girl men would take advantage of, that my middle daughter (then age 7) was the kind of girl that would sleep with any guy, and that my youngest daughter (age 4) was the kind of girl that would use her looks to seduce men." Tina Wasick added "Timothy once told us that our daughter [..] was the type of girl who would probably end up trying to seduce a pastor. She was 7 years old at the time!!"

Perhaps because those reporting this story have pitched it in such an unfair manner, there's no shortage of internet outrage to go around--in fact, I've yet to find someone defending the decision. Here's a sampling of the fact-free delusions I've come across:

This ruling is the top of a very slippery slope. If a judge can order homeschooled children into public schools for no reason besides his own "feelings," all homeschoolers are threatened.

That's Patrice Lewis from WorldNetDaily implying that the judge acted unilaterally, ignoring that both parties requested the court's assistance.

Alan Keyes was also informed of the decision and, as ever, didn't disappoint, reaching deep into his wellspring of unhinged rhetoric to warn that this "imposition of socialist tyranny will produce the enslavement of conscience," and later analogized the decision and fate of Venessa Mills to the tyranny imposed by "American slaveholders in the nineteenth century," who tore children away from their mothers "to be sold into slavery in some distant state." I posted a comment on Keyes' blog but doubt it'll be approved--I simply asked whether anyone commenting there gave any consideration to the fact that the father also had rights. I'll update as to how that goes. [update: comment accepted, no response yet though]

And actual politicians--as opposed to pretend ones like Keyes--also got in on the action: "I agree, this was a terrible decision. Hopefully an appeal will reverse the decision," scolded Neal Hunt, Deputy Republican Leader of the North Carolina Senate.

Finally, two websites, both in rabid defense of Venessa Mills, have cropped up, one, HS Injustice, run by Robyn Williams, who describes herself as a friend of mother Venessa Mills, and another, Home School Liberty, appears to be the work of John Peterson, who appears to be a tireless organizer.

These sources all fail to even confront the question of the father's rights--it's as if the fact doesn't exist, and Thomas Mills has no right in the world to disagree with Venessa as to how the children are schooled.

So why didn't Thomas want the children homeschooled? Apparently he agreed in 2005 to temporarily allow Venessa to homeschool the children "during their early years," but wished for them to return to public school later on. Thomas, and the court, agree that the Venessa is competently homeschooling the children. But the quality of the homeschooling is not at issue--the best interests of the children are issue, and the fact that the line between home schooling and Sound Doctrine is often blurred. Paragraph 39 of the order:

The Court finds as fact that part of the daily activity of the minor children includes the immersion into Sound Doctrine, through frequent communication via phone and web cam with people in Washington State. Thomas Mills expressed concern for this. He stated that he was unaware of Sound Doctrine instruction from a member in Washington State when it occurred during a time devoted to school curriculum. He stated in part that "I am concerned about this because they are directly targeting my daughter." The Court finds this as fact.

In paragraph 42 the court points out, incredulously, that "even though Mr. Mills has a good job, no criminal record, no history of substance abuse or domestic violence, Ms. Mills has asked this Court to enter several orders, including:

• "Limiting Mr. Mills from having any overnight visits with his children;
• "Limiting Mr. Mills from seeing his children to a total of 9 hours a week;
• "Removing all decision making authority away from Mr. Mills related to education and religion;
• "To not allow Mr. Mills any regular visitation on Sundays;
• "To order that Mr. Mills not allow the children to have contact with any ex-Sound Doctrine members or anyone hostile to the organization."

I believe the court found this list of requests telling as to Venessa Mills' state of mind, not only because they're so severed from reality--Tom Mills would have to be a monster to be awarded limited custody sought by Venessa--but also because each request reveals the mother's desire to limit the children's exposure to any external influence, and especially the father's influence. It's as if she's asking for court ordered disconnection, which is a hallmark characteristic of cults--concerned family members often question and disrupt the flow a member's money to the cult/beneficiary. One Sound Doctrine ex-member testified in an affidavit that "we were often harrassed [sic] to give money" and another that Sound Doctrine "really drives a wedge between members and their families."

The court rightly spotted that wedge in time, and ensured that Thomas Mills would have a hand in deciding how his children will be educated. Venessa Mills decidedly wants to immerse the children in Sound Doctrine to the exclusion of any competing thoughts and externalities, which Thomas actively sought to expand. Forced to choose between two potential futures for the children, the court opted for the future that would guarantee exposure to a wider variety of thought, while it simultaneously avoided the danger of the children's education becoming indistinguishable from Sound Indoctrination.

UPDATE: I'm glad to see that I'm not the only one to perceive this case rationally. I earlier missed that Timothy Sandefur and Little Green Footballs (of all places) both get it right also..