Benghazi Questions

My questions are:

Did the President take charge on 9/11?  If not, why not?

If he was in charge, did he order help for the defenders of American sovereign territory, and our ambassador, in Benghazi?  If not, why not?

If he did order help, why was it not sent?  Who disobeyed the order of the CinC?  And who will be fired as a result?

Why are there no pictures of the President in the SitRoom on 9/11 as there were when the SEALs took out bin Laden or when Sandy came ashore? 

These answers are all known to the White House and the President right now.  No “investigation” is needed.  The American people have a right to know the answers before Tuesday.

 

No Discipline in the PCUSA

I represented the prosecuting committee in the case of PCUSA vs. Rev. Laurie McNeill which was decided by the GAPJC in an opinion issued October 30, 2012 and available on the PCUSA web site. 

In October, 2009 Rev. McNeill, who was then Pastor of the Central Presbyterian Church and a member of Newark Presbytery, traveled to Massachusetts to “marry” her same-sex partner in a religious ceremony held in an Episcopal church, using an Episcopal marriage rite, presided over by Episcopal and UCC clergy, and legal under Massachusetts civil law.  She returned to New Jersey to proudly announce to her congregation and presbytery that she was “happily married.”  She followed that up by giving numerous interviews with local media proclaiming her new status, deploring the fact that her denomination did not “recognize” her marriage, and indicating she expected that charges would be brought against her. 

Charges were indeed brought that Rev. McNeill had violated the Constitution of the PCUSA (Book of Order and Confessions) as a result of her having purported to “marry” her same-sex partner contrary to the definition of marriage in W-4.9001 and GAPJC precedent in the Benton and Spahr cases.  She was also charged with violating the Constitution by being neither single nor married to a man as required by now repealed G-6.0106b.  Rev. McNeill moved to dismiss the charges in the Presbytery PJC claiming, among other things, that the Directory of Worship only governed what happened in Presbyterian worship services.  In response, the prosecution argued that Presbyterian worship, service and witness are inextricably connected and that the Directory of Worship therefore governs the worship of Presbyterians in any context.  The prosecution also argued that W-4.9001 was merely declarative of Scripture and the Confessions citing Genesis 2, 1 Corinthians 7, Matthew 5 and 9, Mark 10, Ephesians 5, the Second Helvetic Confession, the Westminster Confession and the Confession of 1967.  The prosecution’s response also specifically referred to a Teaching Elder’s ordination vows to fulfill her office in obedience to the Scriptures and to be instructed by our Confessions.  The Presbytery PJC decided to hear the motion with the trial of the case in early 2011 and, after all the evidence had been heard, acquitted Rev. McNeill of all charges and ruled the motion to dismiss moot. 

 

The not guilty verdict was appealed to the Synod PJC and affirmed in December 2011.  Before Notice of Appeal could be filed, and in violation of D-10.0105, Newark Presbytery, through its Committee on Ministry, transferred Rev. McNeill to Hudson River Presbytery over the objection of the prosecution and the GAPJC refused to stay the transfer claiming that it was without jurisdiction to protect its own jurisdiction.  After several delays in the GAPJC proceedings which pushed the decision past the recent General Assembly, appellate arguments were held on October 26, 2012 with the decision being issued October 30, 2012. 

The prosecution devoted the bulk of its appellate brief and oral argument to the Scriptures and Confessions upon which W-4.9001 was based and to which Rev. McNeill’s counsel did not respond except to disdainfully describe this analysis as a “rant” against homosexuals.  Even if W-4.9001 were not applicable outside a Presbyterian worship service, the Scriptures and Confessions, including those cited in the prosecution’s response to the motion to dismiss, clearly apply to all aspects of the life of those in ordained ministries.  Nevertheless, and even though they were part of the record on appeal, the GAPJC refused to consider these arguments because they had not been discussed at the trial itself, and perhaps, had not been specifically referred to in the charges brought against Rev. McNeill.  This is in clear distinction to the recent Davis case from 2009 in which a Presbyterian Teaching Elder was accused of viewing pornography on a church computer.  There the charges were as unspecific as to what had been violated as in this case, citing the ordination vows generally, there being nothing at all in Scripture or the Constitution which addresses pornography.  Nevertheless the GAPJC had no trouble sustaining the conviction on the general grounds that viewing porn disturbed the peace, unity and purity of the Church. 

The GAPJC in the McNeill case went on to narrowly limit the provisions of the Directory of Worship to Presbyterian worship services only thus eviscerating the Benton, Spahr and Southard cases.  All a Teaching Elder need do to avoid running afoul of W-4.9001 is to conduct the same-sex “wedding” in the context of a UCC or Episcopal worship service, so long as it is not a Presbyterian service.  Furthermore, a Presbyterian Teaching Elder can now bless such a wedding in the name of Allah rather than the Triune God and depart from the baptismal formula of “Father, Son and Holy Spirit” all so long as it is not in a Presbyterian worship service.   

In addressing the second charge, under now repealed G-6.0106b, and despite stipulated evidence that Rev. McNeill had “married” her same sex partner and was living with her in New York, the GAPJC essentially determined that because there was no direct evidence of sexual activity (pictures or a witness), there could not be a conviction.  This also is at variance with prior cases involving sexual misconduct other than homosexual activity and, if followed in the future could lead to a complete abandonment of any ability of the Church to discipline consensual sexual conduct such as adultery, pornography and consensual sex with a minor.  For example, in the Davis case, the evidence that pornography had been used by Rev. Davis was circumstantial only.  That is, once he had left the church porn was found on a computer he had used.  Yet the GAPJC applied a much higher standard in this case of homosexual misconduct.  Does anyone doubt that it should be enough to prove adultery that a male Teaching Elder and a female parishioner had stayed in the same room at a mission conference and had written each other romantic, though not sexually explicit, e-mails?  And if that is not enough, have we not abandoned any attempt at discipline for consensual sexual misconduct? 

The GAPJC altogether failed to address the prosecution’s alternate argument that G-6.0106 permitted only two statuses for ordained persons, single or married to a person of the opposite sex.  Rev. McNeill was, by her own admission, neither, being, as she proudly announced, married to a person of the same sex.  And the witness of her actions was far more strident than if she had merely presided over the “marriage” of a same-sex couple.  By participating in a same-sex “wedding” that she could not provide for her parishioners, she was essentially telling them, do as I say, not as I do. 

The decision in this case is extremely disappointing.  Most disappointing was the failure of the GAPJC to apply or even discuss the Scriptural and Confessional passages that deal with homosexual conduct and so-called “gay marriage.”  The Scriptures, as interpreted by our Confessions, should be the basis of all the Church’s decisions.  Further, the decision, by limiting the Directory of Worship to Presbyterian worship services only, opens the floodgates to all sorts of irregular worship by ordained Presbyterians having nothing to do with the homosexual issue, so long as it is conducted outside a Presbyterian worship service.  Finally, requiring direct evidence of sexual misconduct renders proof of consensual sexual misconduct of all kinds virtually impossible.   

Orthodox Presbyterians should see this as a collapse of the disciplinary process within the PCUSA.  It is already nigh on impossible to successfully bring charges for heresy, that is, departure from Biblical and Confessional theological standards.  This case provides evidence that when the conduct at issue is subject to political disagreement, the GAPJC will find every technical loophole to avoid enforcing existing standards of conduct.  Thus, even though the General Assembly this summer refused to change the definition of marriage, the GAPJC refused to enforce the existing standard and instead urged the GA, “in light of the convoluted grounds on which such cases are . . . decided [by the GAPJC]” to “provide a definitive position” on same-sex ceremonies.  Apparently the definitive positions of Scripture and the Confessions, and the GAPJC’s own past decisions such as Benton, are not enough.  We must accept the fact that, until the GA changes the standard to allow “gay marriage”, the GAPJC will, as in this case, use whatever “convoluted grounds” it finds necessary to refuse to enforce the existing standard.  So even when the orthodox position prevails at the GA, as it did this summer, no discipline will be enforced.

Chick-fil-A and Zoning Laws

The outrageous attempts by Chicago and Boston, among other locations, to prevent Chick-fil-A from opening stores in those locations, in blatant violation of the First Amendment, and solely because of the owners' theological beliefs - that homosexual behavior is sinful - point up a problem with the current structure of building and zoning laws.

While the use of these laws to prevent a business from opening because of the religious beliefs of its owners is obviously abusive, it is the existence of overly restrictive and arbitrary zoning and building laws which enable the abuse in the first place.  And these laws are used constantly in less obvious ways to stifle business and growth, increase the cost of development, and enable petty tyrants to impose their personal preferences.

Local land use laws (the building and zoning codes) are most often so restrictive that nothing can be built without obtaining some sort of exemption, special use or other discretionary exception.  And the process for obtaining those exceptions is so expensive and time consuming, and so completely without any objective standards, that the board making decisions on the exception can never be reversed or held to account for its decisions.  As a result, persons seeking to build, renovate or locate in a local jurisdiction essentially require permission from the municipality to do so.  And there is virtually no appeal from an arbitrary decision. 

Sometimes these arbitrary decisions are relatively harmless, such as a zoning board requiring a brick exterior as a condition for some variance even though the Code has no brick requirement.  Sometimes the results are far more serious than an increase in costs, however.  Our law firm has represented numerous churches and religious organizations around the country which have been denied permission to locate in a municipality under circumstances which indicate that the reason was racial or religious prejudice, or simply antipathy toward religion itself.

In Chicago, as a practical matter, any special permission, and therefore any development, requires the approval of the alderman for the ward in which the property is located.  And there is no appeal.  Thus a single individual can prevent a project for any reason or no reason, including some pretty reprehensible ones.

The solution is for building and zoning laws to be simplified, and made less restrictive, so that most projects can be built without seeking an exception or exemption as long as the rules are followed.  Where there is a need to have an exemption or special permit, the exemption should be granted based on clear, objective standards that avoid discretion on the part of the municipality.  And finally, there should be a clear path to appeal any arbitrary or incorrect decision by the municipality, or in the case of a municipality that engages in selective enforcement of its standards.  This is what the rule of law requires.

And, of course, the land use laws should explicitly prohibit any content related discrimination.  So the political or theological opinions of the owners, or espoused by the organization, would not be relevant, and churches are treated the same was as any other assembly, or similar, use.

Five Big Issues – Tax Reform

Mitt Romney, who will almost certainly be the Republican nominee for President, needs to develop a message that shows his vision for America.  He will not be able to rely on being a better manager than the current occupant of the White House.  I would suggest a five point plan for restoring America: (1) Tax Reform, (2) Health Care Reform, (3) Spending and Entitlement Reform, (4) Regulatory Reform, and (5) Energy Policy Reform.  I hope to discuss each one in turn.

Americans overwhelmingly want their tax system to be fair.  This means, for most, a system, which is the same for everybody.  That is, it should not be rigged in favor of high-income earners who can hire accountants and tax lawyers to find ways not to pay taxes.  Similarly, most agree that having half the population pay no income taxes at all to support government programs is not healthy.  The claim that every worker pays Social Security and Medicare taxes, while true, does not address this issue because both programs are designed so that, if there are no changes, these same lower income workers will receive back far more in benefits than they will pay in payroll taxes.  Thus, any money they pay in payroll taxes will come back to them and none will go to support the rest of government.  These individuals have no incentive to oppose additional government spending and tax increases because they only benefit from bigger government at no cost to themselves.  This is not healthy for them because it fosters a culture of dependency, or for the broader nation.

Gov. Romney should propose a flat tax applicable to all income, including capital gains and dividends, and the elimination of all personal deductions except the charitable deduction (at every income level) and, for people conducting businesses as individuals and not through a corporation, partnership or other business organization, the same deductions to which the business organization would be entitled.  More on the charitable deduction below, but the business deductions are necessary to equalize treatment between taxpayers who do business as individuals and those who use a business organization.  The standard deduction would be replaced by an individual, refundable credit equal to the flat tax on an income equal to the highest average income of people who today pay no income tax.  I would index the credit to overall per capita personal income so that as the economy grows, and high-income individuals earn more, the credit becomes larger. 

Under this system, people who pay no income taxes today would still pay no income taxes, but if the flat rate increased, or they earned more income, any refund they received would become smaller.  Eventually, they would start paying taxes.  The economic incentives would thus be similar to people who are paying taxes, even if lower income individuals are receiving a net benefit from the government.   

I suspect that higher income individuals will end up paying more (and higher effective rates) than today, but have a lower marginal rate, which is the rate that most affects incentives to work, save and invest.  Overall, the distribution of taxes through society will still end up with high-income earners paying the lion’s share of income taxes.   

This is simple to describe, easy to understand, obviously fair and economically beneficial.  It also has other benefits.  First, simply eliminating “many” deductions, but not virtually all, will not, in the long run, be a lasting reform.  As long as a substantial number of special deductions are there, there will be lobbyists waiting to ask for just one more for their special interest.  The only way to do reform, and keep reform, is to establish the principle of no special provisions for anyone.  Let economic incentives, not tax breaks, drive economic decisions.  Second, the cost of compliance will go down, and voluntary compliance will go way up because people will perceive the system as fairer, correct tax treatment will be easier to determine, and compliance will be easier and less expensive.  Third, it will provide equal treatment among taxpayers no matter the source of their income, and to married and unmarried individuals and couples, and those married individuals who file separately.   

But why keep the charitable deduction?  Some conservatives and libertarians would prefer the government, and particularly the federal government, stay out of doing charity altogether.  That is unlikely to be a majority opinion.  There are strong political interests in favor of the charitable deduction, and most Americans think that supporting education, the arts, religious organizations, help for the poor, and so on are worthy causes and should get some government support.  If we can eliminate, or substantially reduce, direct government support for many of these causes, and instead spur private support through the charitable deduction, it will be far preferable as public policy.

The charitable deduction is far better than direct government support for charitable causes for a number of reasons.  First, a dollar given to a charitable cause only costs the government that dollar multiplied by the flat tax rate, while direct support costs the government 100% of that dollar.  That is, if the flat tax rate is 20%, each dollar of charitable giving only costs 20 cents while direct government support costs $1.00.  Thus, charitable giving is highly leveraged.  Second, taxpayers can decide where their charitable dollars are going rather than having someone else decide.  This will be popular, and will avoid the problems of taxpayers objecting to certain charitable programs by government which they do not like. Let those who like pictures of Christ dipped into urine support that kind of “art” but leave the rest of us out of it.  Similarly, lobbyists will have less to do because the charitable dollars will be allocated by individual dollars not be special earmarks and other budget provisions. Third, private charities can administer their charitable programs far more efficiently and effectively than the government, thus providing more bang for the buck.  Fourth, because every government program becomes, in some sense, an entitlement, it is far more difficult for government programs to cut off undeserving recipients than it is for a private charity.

For those who object to higher taxes on capital gains and dividends because they will reduce needed investment, there need to be two other wrinkles in the system.  First, capital gains should be considered income only to the extent they are actually based upon an increase in the value of an asset sold.  That is, to the extent a sales price higher than the purchase price is due, in part, to inflation, no capital gains tax should be due.  This will encourage long term investing while still keeping a fair and simple system.  In addition, to keep equal treatment among business entities, dividends paid should be deductible to the corporation.  Thus, there will be no double tax on dividends, dividends will be encouraged, and there will be equal treatment of equity capital and debt which will encourage equity investing.

This system is simple, understandable, fair, and can be designed to provide the same revenue as is being provided under the current system while reducing the marginal rate for high-income taxpayers and the effective rate for low-income taxpayers.  That sounds like a win, win, win to me.