Friday, September 30, 2016

Notes from Sarah and an Event Recap

Birthday Bun by redpangolins via Flickr. CC 2.0.

Happy Birthday, Co-Blogger Bunny!!!!!

Good morning, Readers! It's been quite awhile since I (Sarah) have written here. I started blogging on constitutional law and civil rights in a separate blog for a legal blogging class at law school, and have continued to write there. But the Intermediate Scrutiny team still wants to write together, so we're going to keep writing here, writing on separate blogs, and sometimes post things to both blogs.

I've started attending a lot of events—conferences, symposia, talks—and I'm going to start writing about them on these blogs, as well as the cases or issues that they inspire me to research and read and write more about.

The following originally appeared on my other blog. I wanted to make sure I got it up in time to let readers know about the Twitter chat this afternoon at 2PM EST!

Sunday, September 25, 2016

Bunny On: Radical Nuns

Bunny writes:

This past Friday, republican presidential candidate Trump added 11 new names to his existing list of potential Supreme Court Nominees. A couple of the names are very familiar to me, including the Hon. Judge Amul Thapar of the Eastern District of Kentucky. Admittedly, I have yearned for an excuse to write about the wonderful opinion Judge Thapar penned in the B Girls lawsuit when he sat by designation in the Eleventh Circuit this past summer. The B Girls (short for Bar Girls) are women who lured men into drinking establishments in Miami Beach under false pretenses, with the alleged intent of compelling them to run up outlandish bar tabs. Par for the course, I say. Of course, there was more to the scandal, with tales of a Russian scam ring absconding the men's credit card numbers to make fraudulent charges. Wire-fraud came into play, and the women were convicted under the corresponding federal statute. The question on appeal was whether the District Court erred in the issued jury instructions on the element of "intent to defraud."

Judge Thapar's opinion is chock full of delightful musings, including a nod to Mr. Spock and a footnote lesson on bourbon:
“Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.” ... “Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle.

United States v. Takhalov, 827 F.3d 1307, 1313 n.5-6 (11th Cir. 2016)

I would be remiss to omit Sarah's favorite part:
Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.*
*Sherlock or Oliver Wendell: either Holmes will do here.

Id. at 1318

A Man Holmes for All Seasons

Photo of Justice Holmes is an original by Harris & Ewing, stored in the Library of Congress
LC-USZ62-47817, now in the Public Domain. Sherlock Holmes illustration by Sidney Paget,
which appeared in The Strand Magazine in December 1891, now in the Public Domain.

Aside from a reputation for writing excellence, Judge Thapar has found himself ruling on a variety of headline-grabbing cases of controversy (as any federal trial court judge has experienced at some point in their career). One such notable case of recent years was the case of U.S. v. Walli, where a catholic nun, Sister Mary Rice, was convicted with two other individuals in a jury trial for causing injury to, interfering with, or obstructing the national defense, and for depredation of government property. During sentencing, Sister Rice pleaded with Judge Thapar to "[p]lease have no leniency on me ... To remain in prison for the rest of my life would be the greatest honor you could give me." The government recommended a sentence of 6.5 years, which Thapar referred to as "overkill," and he ultimately sentenced her to 35 months instead. The 6th Circuit eventually overturned the charges, finding "as a matter of law, [defendents] lacked the intent necessary to violate the Sabotage Act." With that, Sister Rice and her comrades were set free. And yet, Judge Thapar will continue to be known as "that judge who put a nun in jail."

As Sarah remarked to me, "It sounds like this nun could handle it." Sarah's comment reminded me of the nun character in the Netflix series Orange is the New Black, and it occurred to me that since the series was based on true events, perhaps so was the character of Sister Ingalls, who was in minimum security prison for repeated radical protest efforts.

And so began the internet rabbit hole on a Friday night. Indeed, the show's character is based on real-life Sister Ardeth Platte:

On Oct. 6, 2002, the two sisters and another nun - armed with bolt cutters, a hammer and baby bottles filled with their own blood - broke into an unmanned Minuteman III missile site in northeastern Colorado and painted bloody crosses on the silo. It was the day before the one-year anniversary of the war in Afghanistan.
Washington Times

Hang on, this sounds awfully familiar:
In the dark of night on July 28, 2012, in Oak Ridge, Tennessee, an 82 year-old nun and two Army veterans, ages 57 and 63, cut their way through four layers of fences and reached a building where the Department of Energy stores enriched uranium. There the trio spray-painted antiwar slogans, hung crime tape and banners with biblical phrases, splashed blood [with baby bottles], and sang hymns. When a security guard finally arrived, the group offered him bread and read aloud a prepared message about “transform[ing] weapons into real life-giving alternatives to build true peace.” Then the group surrendered to the guard's custody.

United States v. Walli, 785 F.3d 1080, 1083 (6th Cir. 2015)

Reforming Habits

Catholic sisters join clergy in the March 10, 1965 march in Selma, Alabama. The marchers walked for less than a block before police stopped them. Pictured from left to right are Sr. Roberta Schmidt, CSJ, Sr. Antona Ebo, FSM, Sr. Rosemary Flanigan, CSJ, and Sr. Eugene Marie Smith, FSM. (© Bettmann / CORBIS), from

As a Catholic, this notion of radical nuns was fascinating. Admittedly, I was previously unaware of protesting nuns, outside of women like Mother Theresa who illegally snuck bibles into certain locations to disperse to the locals. Apparently, these brave women are quite common with several accounts dating back to the civil rights movement.

Interviewing Dr. King about the sisters’ participation, journalist John L. Wright Jr. wrote that King believed the “participation of the nuns in the Selma demonstrations ‘had a special significance’ in arousing the national conscience to the plight of the Negro because the public knows a nun to be a woman of ‘great sacrifice and dedication.’” As Wright reported, King believed that the presence of religious people “identified the church with the struggle . . . in a way that has not existed before and has made it clear that civil rights is, at the very bottom, a moral issue.”
- Global Sisters Report 

For a recent example of radical sisters, see this story of nuns protesting voter purge. Not only are these great examples of symbolic speech, they are bolstered by the fact that we are talking about sworn servants of the Catholic church, which obviously brings religious freedom of expression into play. I don't have a particular point that I want to make at this time, and simply wish to offer this rabbit hole adventure as food for thought.