Friday, December 23, 2005


(This column will appear in the December 29, 2005 The Albany Journal)

I am now the proud possessor of all of the famous Phoebe Factoids. Some are funny. All are thought provoking. None are criminal.

On December 15th and 16th The Albany Herald devoted two straight days of front page, top of the fold coverage to the indictment and booking of Albany accountant Charles Adam Rehberg and physician Vito John Bagnato for six misdemeanor counts of harassing phone calls, one count of aggravated assault on physician John Hotz, and one count of burglary of Dr. Hotz’s home at 1614 Lynwood Lane. What the Herald and local television didn’t report at the time were the details that make this story unique in the annals of criminal prosecutions. After doing a little digging and asking a few questions, I discovered some fascinating facts about the “Phoebe Factoids” prosecution:

* The harassing phone call statute, which the local media didn’t bother to report, only includes “persons” as victims, not corporations or “offices.” The pertinent portion of the statute, (OCGA) §16-11-39.1, defines “harassing phone calls” as occurring

“if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person or the family of such other person;“

Yet four counts of the indictment allege that the “victim” was something other than a person: “Phoebe Putney Memorial Hospital” (Count 1);; “Sullivan Group” (Count 4); “Bruce Melton Oxford Construction Company” (Count 5); and “Albany Land Company, Inc.” (Count 6). These counts are almost certain to be dismissed before trial.

* Count 2 charged Rehberg and Bagnato with making harassing phone calls to “U.S. Congressman Sanford Bishop” on January 13, 2004. A source confided to me that Congressman Bishop was surprised to hear that he was a victim of this “crime.” That alone will be enough to get this count dismissed, along with any other count where there is no complaining victim

* All citizens have a First Amendment right to “petition the Government for a redress of grievances.” Here’s an excerpt from a FACTOID sent to Congressman Bishop’s office:

“In an editorial January 7 [2004] Albany Herald Editor Kay Read acknowledged a serious problem facing our State- the Medicaid program is $173 Million short of funds... In our opinion, the solution is obvious. Phoebe Putney ... has accumulated massive cash reserves due to years of excessive profits... Phoebe alone reported almost $217 million in the bank when it filed its 2002 Federal information return... The solution to Georgia’s Medicaid budget problem is simple- reduce Medicaid payments to public hospitals with excess reserves and profits, and redirect these funds to other providers... Phoebe alone has enough excess funds to solve the entire State of Georgia Medicaid crisis!”

* One of the more obvious discrepancies between the harassing phone call statute and the allegations in the indictment is that the defendants aren’t alleged to have made telephone calls. People don’t “answer” fax machines- unless they want an ear splitting electronic sound inflicted on their brains. Sending a document via a fax line is no more a telephone call than sending an e-mail via the Internet- which also piggybacks on phone lines.

* The statute of limitations on misdemeanors such as harassing phone calls is two years. The statute was about to expire on counts 1 and 5 when the indictment was returned on December 14, 2005. In ordinary criminal practice, misdemeanors charges are rarely filed more than six months from the date of the offense. It is virtually unheard of for harassing phone call charges to be made almost two years later- the final charged offense allegedly occurred in March of 2004. Why the almost two year delay?

* Incredibly, Bagnato and Rehberg were also indicted for two serious felonies which carry 20 year maximum sentences, aggravated assault and burglary. Count 7 charges:

“... JIM BOWMAN, VITO JOHN BAGNATO and CHARLES ADAM REHBERG with the offense of Aggravated Assault, for that the said accused did unlawfully make an assault upon the person of Dr. James A. Hotz, by suggesting that the accused had a weapon, when the accused did confront the victim in the victim’s home, and such act placed the victim in reasonable fear of immediate serious bodily harm.”

Count 8 charges the same three gentlemen with burglary, alleging that they:

“intentionally, unlawfully and without authority enter or remain within a dwelling house of another, to-wit: residence of Dr. James A. Hotz... with the intent to commit therein the crime of Aggravated Assault...”

These charges are “incredible for three reasons:

(1) Neither Bagnato nor Rehberg have ever been to Dr. Hotz’s home;

(2) According to the Official Code of Georgia (OCGA) § 16-5-21, the crime of aggravated assault occurs“when he or she assaults... with a deadly weapon or ... any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The indictment in this case is defective because no deadly weapon is mentioned- and sources tell me that no weapon existed. Without an aggravated assault, there can be no burglary, since an essential element of the burglary charge is the intent to commit an aggravated assault at Dr. Hotz’s home.

(3) No date is specified in the indictment for the assault or the burglary. OCGA §17-7-54 requires every indictment to “...state with sufficient certainty the offense and the time and place of committing the same.” Without a time alleged, the indictment is defective. Since Bagnato and Rehberg will obviously have an alibi- having never been to Dr. Hotz’s home- the State is required to give them notice of the date and time they were alleged to have been there.

* The Special Prosecutor, Houston Judicial Circuit District Attorney Kelley R. Burke, responded to Maverick Attorney Ralph Scoccimaro’s passionate defense of his client with some inflammatory speech of his own- comparing the Phoebe Factoids to “go[ing] onto someone else’s property and burning a cross under the guise of free speech which is tantamount to what these defendants are claiming.” Well, no. Burning a cross on someone’s lawn isn’t remotely comparable to faxing a document to a Congressman which reveals the sleazy machinations of a public hospital that has managed to stash away over $200 million in cash, much of it from government funded Medicaid and Medicare payments.

* Finally, District Attorney Ken Hodges has some “splaining to do,” as Ricky used to say to Lucy. Why did he use a 2003 grand jury to subpoena BellSouth’s phone records to unearth Bagnato and Rehberg as the source of the faxes? Why did he turn Bagnato and Rehberg’s phone records over to Phoebe’s lawyer, but not present a criminal case to that grand jury or any of the half dozen grand juries that met after that? Why did he wait over a year and a half to request a special prosecutor? Was his decision to request a special prosecutor affected by the avalanche of bad publicity from the May 9, 2005, Atlanta Journal-Constitution front page expose of his giving grand jury documents to campaign contributors at Phoebe?

* The questions we should be asking are why were these gentlemen publicly embarrassed over matters that don’t come within a thousand miles of constituting a crime, and why are taxpayer dollars are being wasted on this futile and absurd prosecution?

Sunday, December 11, 2005

A Democrat Disagrees with Joe Lieberman

(Republicans who derided Senator Joseph Lieberman in 2000 are now singing his praises)

Recently Connecticut Senator Joe Lieberman has been pilloried by Democrats upset by his support for the war in Iraq. President Bush and his supporters, who had no problem deriding Senator “Sore Loserman” in the 2000 election, are now holding the senator up as a paragon of wisdom and moral strength. On December 7, 2005, Senator Lieberman wrote:

“It's time for Democrats who distrust President Bush to acknowledge that he will be the commander in chief for three more critical years and that in matters of war we undermine presidential credibility at our nation's peril."

Respectfully, I dissent. I agree with the words of another public servant, coincidentally also named Joe Lieberman, also a senator from Connecticut, who said on July 28, 2003:

“In our democracy, a president does not rule, he governs. He remains always answerable to us, the people. And right now, the president’s conduct of our foreign policy is giving the country too many reasons to question his leadership. It’s not just about 16 words in a speech, it is about distorting intelligence and diminishing credibility.”

I don’t have the credentials of Senator Lieberman; nor do I have a national stage as do prominent Democrats like senators Lieberman, Hilary Clinton, and John Kerry, all of whom voted for this war. But I do have three things that they don’t have: a personal stake in the issue; a track record for being right on Iraq; and a workable exit strategy that will extract American troops without leaving Iraq in anarchy, violent civil war, or in the grips of a theocratic dictatorship.

(LEFT: My son on the banks of the Tigris River in Baghdad in 2003)

A Personal Stake in Iraq

Unlike any member of Congress, I saw my child ordered to war in Iraq in 2003. His Marine Corps reserve unit was fortunate enough to return with all its members, although one, Colonel Bob Zangas, was killed early in 2004 when he returned to work for the Coalition Provisional Authority to help prepare a new constitution for Iraq. Nothing focuses the mind like having a family member engaged in war, and like other parents and family members, to me the issue of the war in Iraq is not a political game to see which party can use it to best advantage. I am disgusted by Democrats and Republicans alike who are more concerned with their careers or with their party’s position of power than by the loss of lives, limbs, and morale of our troops in Iraq or by the rapidly declining moral authority and fiscal health of our nation.

Publicly available information and Common Sense told us that Iraq was not an imminent threat

As for being right on Iraq, on September 18, 2002, the Atlanta Journal-Constitution published my opinion that although removing Saddam Hussein from power in Iraq was a worthwhile goal, I disagreed that “a unilateral invasion by American soldiers [was] the only way to accomplish this.” I pointed out that we didn’t “need any pretexts, such as alleged links to international terrorism, to have Hussein removed from power. He has already committed enough crimes against humanity over the past 20 years.” In my view, we had the intellects in this country capable of figuring out a way to remove Hussein “in a manner that avoids the deaths of American soldiers and innocent Iraqi civilians.”

I also knew that the alleged “imminent threat” from Iraq’s weapons of mass destruction was untrue, and I assumed that every Democrat and Republican in Congress who voted October 11, 2002, to authorize the President to use force was aware that of all the nations in the world which might want to do us harm, Iraq was the least capable of carrying out those intentions. As Colin Powell had stated publicly and testified in 2001:

"He [Saddam Hussein] has not developed any significant capability with respect to weapons of mass destruction. He is unable to project conventional power against his neighbors."
Secretary of State Colin Powell during a visit to Cairo, Egypt, February 24, 2001

"The sanctions, as they are called, have succeeded over the last 10 years.... The Iraqi regime militarily remains fairly weak. ... It has been contained." Colin Powell testimony before the Senate Appropriations Committee, May 15, 2001.

As for the efforts of President Bush and Vice President Cheney to conflate Iraq and the Al Qaida attacks on September 11, 2001, every member of Congress who voted for war knew that none of the 19 hijackers was an Iraqi. The recent revelation that President Bush was informed within days after 9-11 that Saddam Hussein had no ties to Al Qaida should not be news. Anyone with an ounce of common sense and a smattering of knowledge about Al Qaida and Saddam’s Iraq would have realized that secular Iraq- which, among other things, allowed the sale of alcohol and placed uncovered women in positions of authority- was anathema to Osama Bin Laden and his insane version of Islam.

(Under American occupation, the insurgency has stepped up violence with the tacit approval of local Iraqis)

Bush’s Incompetence: Worthy Ends overshadowed by Disastrous Means

Unfortunately, it took over three years, over 2,000 American deaths, and tens of thousands of innocent Iraqi civilian deaths, for some members of Congress and most of the American people to figure out that there is a huge difference between having worthwhile goals- such as removing Saddam and establishing democracy in the Middle East- and using appropriate and effective means to achieve them.

To use a simple analogy, if I had an annoying rat in the attic of my house and President Bush was an exterminator, he would break down my door in the middle of the night, accidentally shoot my family members, blow up the house, leave it in rubble, and declare victory because he caught the original rat, even though a hundred other rats had taken the opportunity to invade and ensconce themselves in the remains of my home. Like the Iraqis, even though I might agree that removing the original rat was a worthwhile goal, I would be hard put to imagine a more incompetent, destructive method in doing so. And I sure as hell would want him out of my house while I tried to deal with the mess he created.

But the invasion occurred anyway, and our next question- the one which caused the first President Bush to refuse to take the road to Baghdad after ousting Saddam from Kuwait- was “what next?” On this issue, I was also right, as I wrote in an April 19, 2003, e-mail to one of the family members of a Marine in my son’s unit:

“Why the UN should take over is simple- whether or not they do a better job, the perception among the people in the region will be hugely different regarding a UN sponsored trusteeship of the country. It simply is in our national interest to have a respected international organization take over the rebuilding of Iraq. The sooner American and British soldiers are out of there, the less likely that terrorists or suicide bombers will attack our loved ones there or here. And a quick exit will defeat the absurd arguments that we are a colonialist country seeking to exploit Iraq's oil.”

When I sent that e-mail Baghdad had just fallen and President Bush’s infamous “Mission Accomplished” speech on the aircraft carrier Lincoln was only two weeks away. Yet I raised the specter of “terrorists or suicide bombers” because I foresaw what has occurred since: the people of Iraq, most of whom initially welcomed us as liberators from the tyranny of Saddam, have come to despise us as arrogant occupiers who are not bound by the rule of law. The insurgency has been inflamed by our actions in resurrecting the evils of torture and Abu Ghraib prison, and the local populace sees no reason for our troops to stay so long as we are unable to restore the infrastructure, reduce devastating unemployment, or prevent mass murders and kidnapings. They realize we are only going to leave when the American people are so disgusted by the stream of coffins coming back and the flow of dollars going out that Congress is motivated to cut our losses.

An Exit Strategy to phase out American Troops without Leaving Chaos or Civil War

President Bush claims that a specific deadline with a detailed timetable for withdrawal will send a dangerous message to “the terrorists” and other vague enemies that we can be driven out by their tactics. That’s a curious concern for an Administration which has made no secret of its complete disdain for foreign opinion, overwhelmingly against us on this issue, and which maintains that this White House “creates its own reality.” In fact, simple logic tells us that if President Bush really intended to remove American troops once the insurgency was quieted and democracy installed, the smartest tactic for the “terrorists” would be to lay low, pretend to go along with the program, give our troops a chance to leave, then come out of hiding and attempt a coup or instigate a civil war.

Since President Bush has continually maintained that we were going to leave anyway (a statement belied by the billions of dollars we have spent fortifying the Green Zone, constructing our new armed fortress of an embassy, and building permanent military bases), one can hardly see how a detailed exit plan harms our interests. Meanwhile, staying in the country without a firm exit date has provoked more suicide bombings and an increasing number of American casualties. Every benchmark- the June 2004 handover of “sovereignty,” the January 2005 elections, the October 2005, vote on the Constitution- which was supposed to create an environment for success in Iraq, has instead been followed by increased violence and further escalation towards a civil war.

Last year when I ran for public office in Georgia, I proposed a phased six month pullout of American combat troops from central Iraq- the Sunni triangle- leaving enough troops in the north to protect the Kurds from invasion and in the south to protect the oil fields. I suggested bringing in Arabic speaking Muslim peacekeepers, preferably from our allies Jordan and Egypt, to replace American troops in central Iraq, the area where our religion and our lack of understanding of language, culture, and ethnicity, has cost us lives and the goodwill necessary to do an effective job of peacekeeping. During that six months we can train Iraqis who want to fight for their country’s freedom (we can even bring them and their families here to America to do so).

I also proposed internationalizing the oil fields, dedicating half of their revenues to rebuilding Iraq- none of which may be used for procuring arms. The other half should go to repay America’s bill for the war and compensate the victims of Saddam Hussein. Whatever else Iraq’s constitution provides, we should impose requirements on the country that it never have a standing army or air force, that it have a government free of religious influence, and that every person in the country be guaranteed the same rights to free speech, freedom of religion, due process of law, and democracy that we enjoy here.

I wish the people of Iraq well. My son is proud of the work he did there as a Marine, and in no way should the Democrats or Republicans follow a “cut and run” strategy or a “declare victory and leave” plan that leaves the country in chaos, a Somalia in the heart of the Middle East. However, President Bush does neither Iraq nor America any favors by keeping a large force of American troops there indefinitely with no rational exit strategy and no clue as to what is fueling popular support for the insurgency- namely, the constant irritant of American, English speaking, (mostly) Christian troops.

As I wrote last year:

“Many if not most of the people of Iraq do not want to have freedom handed to them by an American army of occupation. If the Iraqi people are to value and treasure freedom the way we do, then they are going to have to earn it.”

Saturday, December 10, 2005


(This column will appear in the 12/15/05) THE ALBANY (GA.) JOURNAL)

Twenty-nine years ago, inside Courtroom 211 of the Dougherty County Courthouse, I stood in front of Judge Asa D. Kelley, Jr., quaking in my shoes. I was in a courtroom for the first time as a lawyer, and my mission (sent by Willie Lockette, now The Honorable Willie Lockette, Superior Court Judge) was to obtain divorce decrees in several uncontested cases for indigent clients of Georgia Legals Services. Law school doesn’t really prepare young lawyers for handling divorce cases, and even though I had taken a class in Family Law, virtually none of the course materials were remotely relevant to a domestic relations practice involving divorce, custody, support, adoption, and legitimation issues. But I made it through that morning in 1976, and a few thousand cases down the road, I can now look back and laugh at my youthful nervousness.

We’ve come a long way since those days, and by “we” I include the legislature, judges, and members of the bar. Joint custody agreements, almost unheard of 20 years ago (one superior court judge south of here flatly refused to approve any of them until his hand was forced by legislative enactment), are now routine, as well as custody awards to fathers in many cases. The pendulum has swung from one extreme to another on child support. In the 1970’s, it was not unusual to see awards in the realm of $20 to $35 weekly, barely enough to cover day care for moms (dads didn’t get custody very often then).

In spite of much of the publicity regarding domestic relations law, I often find that clients come into my office uninformed, or worse, misinformed, as to what their rights and responsibilities are. Here’s a few bits of information which may prove helpful to you or your friends. The only court with jurisdiction to hear these cases is the superior court in the county where the case is heard.

Child custody

Once upon a time, custody awards to the mother were automatic. Fathers would get “standard visitation” with their children, which typically included every other weekend, alternating and rotating holidays, and a week or two in the summer. The system had one virtue- predictability, but the main flaw was that the best interest of the children in being with the parent most capable of raising them was rarely considered.

In the last fifteen years, since Official Code of Georgia Annotated (OCGA) §19-9-6 was enacted by the Legislature, joint custody awards have been authorized. Since then joint legal custody awards have become fairly common, but joint physical custody, where each parent keeps the children roughly half the time, are necessarily rare due to geography or work schedules. Starting in the 1990’s, custody awards to fathers became more common as newer judges came to office who were more comfortable with the concept of a father raising children. Visitation awards are more creative, with many judges awarding weekday visitation in addition to weekends.

One misconception I’ve frequently encountered is that marital misconduct will be a factor in custody cases. Once upon a time judges took into consideration a spouse’s infidelity as a factor in raising children, but in the last few decades, factors such as parenting duties assumed by each spouse, domestic violence, alcohol or substance abuse, and quality of the extended family (grandparents and other family members who help take care of young children), are far more important.

Another misconception is that if a party doesn’t pay child support, he or she doesn’t have a right to exercise visitation. The two factors are unrelated in the law. A frequent complaint I have heard from the custodial parent is when a non-custodial parent doesn’t exercise visitation. The law can’t compel a parent to visit a child, but courts have great latitude in modifying visitation privileges when the children’s well being is affected.

One nice thing about practicing law in Albany is that most divorce lawyers recognize that children are better served by parents who settle their cases out of court, avoiding the emotional scars of a court battle over child custody, the amount of support, or who gets which pots and pans.

Child support

In contrast to the era before 1985, when child support awards were extremely low on the average, awards ranging from $100 to $250 a week are common under the guidelines set out in OCGA §19-6-15. That law set specific guidelines for courts to use in setting support- 17% to 23% of the non-custodial parent’s gross income for one child (“gross” means income before any deductions are taken out), 23% to 28% for two children, 25% to 32% for three, and so forth. Departures from the guidelines do occur- almost always lower- such as when the non-custodial parent has support obligations for other children, has joint custody or extended visitation, or is paying other family bills.

By court decision in contested cases or by agreement of the parties, the final divorce decree must include a provision for how health and hospitalization insurance will be handled, and the judge must also determine whether or not to enter an income deduction order that will cause support to be automatically deducted by an employer from the paycheck and sent to the state office in Atlanta which distributes support.

The advantage of this system has been a predictability which has promoted settlements, since each party’s attorney has a good idea as to what a judge will do once the custody issue is resolved. The disadvantage has been in cases where the non-custodial parent has high debts or living expenses, and the support award has caused a serious economic hardship. However, that law is about to undergo some radical changes, and we will all have to wait and see what the 2006 legislature does in that area.

Although occasionally parents complain when the parent receiving support does not spend all of the child support money on the children, so long as the children are clothed, fed, sheltered, and otherwise looked after, courts will not interfere in how support money is spent.

Spousal alimony

Spousal alimony, once fairly common when divorces involved housewives and employed husbands, is now a rare event, since working couples are the norm, and alimony is usually of limited duration when it is awarded. If a separation and divorce is caused by the adultery or desertion of one spouse, that spouse is precluded from receiving alimony. However, misconduct does not prevent a party from receiving an equitable division of marital property and debts

Who gets what property in a divorce?

The rule of division of property in Georgia differs from many other states which have “community property” (everything obtained during the marriage is divided equally). In Georgia, the courts use a standard called “equitable division,” which means pretty much whatever a judge or jury decides. (It should be noted that it is exceedingly rare for divorcing parties to submit their case to a jury, which under the law can be asked to resolve issues of child support, alimony, and division of marital property and debts.)

It doesn’t matter whose name is on an asset purchased during the marriage- a deed to a house or title to a car- if it was purchased during the marriage (or payments were made on it during the marriage) it is a marital asset, subject to the exceptions noted below.

Property owned prior to the marriage, such as the value of a profit sharing plan on the date of marriage, or the equity in a home on the date of marriage, is not considered a marital asset and is not subject to equitable division in a divorce, but the increase in value or equity attributable to additional payments (such as mortgage payments or additional employer contributions to a profit sharing plan) are marital assets subject to division in a divorce. Also considered non-marital assets are items of property acquired by gift (even from the spouse!), inheritance, or obtained as damages for compensation for personal injuries- except for damages attributable to lost wages, which would be a marital asset. If a party uses a previously owned asset (a prior home or a savings account, for instance), to acquire an asset during the marriage, the new asset is usually going to be considered pre-marital property.

I recently settled a divorce case where the wife owned the marital home prior to the current marriage, but during the marriage, the parties made substantial improvements costing tens of thousands of dollars and involving obtaining a second mortgage. The wife got to keep the home, but she had to make concessions in other areas to make up for the husband’s portion of the equity in the improvements on the property.

One misconception I have encountered over the years is that if a person is married for ten or more years to a member of the military, the non-military spouse is entitled to half of the military retirement pension as alimony or a division of property. It is true that back around 1980, Congress passed the Military Spouses Benefits Protection Act, partly in response to a United States Supreme Court decision that prevented the garnishment of military retirement benefits to pay spousal alimony.

However, as one Army wife divorcing her husband found out to her chagrin about 20 years ago, the law didn’t entitle her to receive one penny of her husband’s retirement- it only authorized a means of collecting the alimony or property division once a judge or jury made an award. She told the jury she wanted one-half of her husband’s Army retirement, which he was due to start receiving three months after the divorce trial. When I asked her why, she said because she had been married to him for over twenty years while he was serving in the Army. Then I asked her if she felt her husband should also be entitled to one-half of her pension, which would have been a fraction of her husband’s monthly payments, and which she wasn’t due to receive in over 15 years. She angrily said “No, that’s mine. I worked for it.” Her selfish stinginess earned her an alimony award of $0.

What is the status of an unmarried father?

One of the most common misconceptions I encounter comes from unmarried fathers who believe that once a paternity and child support order has been signed and entered by the Court, then they are the legal fathers of the child and have full rights to the child. Unfortunately, although the legislature has made some advances in recent years in laws regarding establishment of paternity, if a father wants to establish his legal rights to visitation and/or custody, he will have to marry the mother or file a petition for “Legitimation” in the superior court of the county where the legal custodian (usually the mother) of the child resides. Typically, orders of legitimation are routinely granted, but undue delay can be fatal. Over the past few years I have seen several legitimation petitions denied because a father waited years to file his petition, or because he failed to support the child or maintain a relationship with the child.

When should a stepparent adoption be filed?

Every so often I get a call from newlyweds wanting to have the new stepfather (almost never a stepmother in my practice) adopt the child(ren) of his wife. Stepparent adoptions are probably the most common of those granted by the courts, but couples should be aware that once the adoption is completed, it’s not like a store purchase where, if you don’t like the merchandise, you can take it back for a refund.

That may sound a bit callous, but when I get calls within a few weeks or months of a marriage, my usual response (with some exceptions) is to suggest that the couple wait at least a year to make sure the marriage is on solid footing before filing a stepparent adoption petition. I also make sure that they understand that once an order terminating the biological father’s parental rights is entered, the mother’s right to receive child support from the father is also terminated. Sometimes people want an adoption as a means to an end- getting a child on a father’s insurance plan, allowing a child to inherit, or changing a name. I try to ask what their reasons are for the adoption, and if a less permanent means can be utilized to accomplish it (most health insurance plans cover stepchildren living in the home, wills can be drafted to resolve inheritance issues, and a simple name change petition is a procedure that doesn’t change anyone’s legal rights or relationships), I explain what the alternatives are.

In closing anyone wishing to look up the law in this area can go to the following website:

Monday, December 05, 2005


(This column will appear in the 12-8-05 THE ALBANY (GA.) JOURNAL)

(left) Bill O'Reilly scoops the nation with his disclosure of the ACLU's closet relationship with Dr. Seuss's Grinch

“The War on Christmas: How the Liberal Plot to Ban the Sacred Christian Holiday Is Worse Than You Thought” - title of book featured on Bill O’Reilly’s show on Fox News Channel.

“Christians have right to holiday” - Headline of December 5, 2005, unsigned editorial in The Albany Herald.

If you are an ordinary American over the age of 40, you’ve probably already noticed that Einstein’s theory of time and space needs a little tweaking. Starting on Labor Day, time speeds up from a leisurely walk to a slow jog. By Halloween, that jog has become a good bit faster, and from Thanksgiving to Christmas, time is sprinting and shopping days disappear faster than a cheeseburger within reach of Rush Limbaugh. But even so, most of us enjoy the holiday season as an opportunity to share food, presents, and football (the guys, anyway) in the company of our friends and family.

Although I am Jewish, I always appreciate the many friends and acquaintances who wish me a “Merry Christmas,” or, if they know my religion, a “Happy Chanukah.” And I have no compunctions about wishing them a Merry Christmas in return- it’s not a betrayal of my religious beliefs to wish my Christian friends good cheer on their sacred holiday.

So imagine my surprise when I discovered that I am one of the Grinches who stole Christmas from (the Herald says) the 77 percent of Americans who claim to be Christian:

“I believe -- and I could be wrong -- that most liberals are as angry about this as conservatives. It's the far left. It's the loony left, the Kool-Aid secular progressive ACLU America-haters. That's who's doing this.” Bill O’Reilly, interviewing War on Christmas author John Gibson during his “Christmas under Siege” segment on the O’Reilly Factor.

As a very liberal Jewish member of the American Civil Liberties Union (ACLU), I wasn’t sure if I should laugh at these absurdities or get angry at the vicious calumnies of the hypocritical hacks at Faux News. Plus, now I’m confused- how can I be both a secularist and a Jew? I guess if I practice my religion, but don’t want to use the government or large retail stores to impose my beliefs on others, as Sean Hannity, Bill O’Reilly, and the rest of the rabble rousers want to do, I can be both.

And just for the record, the ACLU has absolutely nothing to do with the large retail chains which wish their shoppers “Happy Holidays” instead of “Merry Christmas,” and secular humanists are not the culprits who took the “Christ out of Xmas.” The ACLU could not care less what private store owners wish their customers during the run up to Christmas- it’s when politicians use their public offices to impose their religious beliefs on the unwilling that the ACLU acts to protect freedoms guaranteed by the First Amendment. And with rare exception, most large retail chains are owned by practicing Christians, not the almost mythical “secular humanist” heathens who draw the ire of O’Reilly, Hannity, and Limbaugh. If those privately owned stores want to say “Happy Holidays” so that they don’t alienate the 23 percent of their customers who aren’t Christians, then that’s not only smart business, it’s common courtesy.

However, unbowed by the dictates of logic or good taste, and unafraid to mix her metaphors, the comfortably anonymous author of the Albany Herald editorial wrote:

“Many Christians are fed up with what they see as the hijacking of their religious holiday by secularists who want the benefits of Christians’ ‘high holy day’... The situation is much like the naked emperor in that some secularists want Christmas to go on without acknowledging the fact it is a religious celebration.”

To her (or him) I say: get a grip. If you want to complain about something, at least find a real problem to address. Don’t write provocative fiction about secularists sabotaging Christmas to distract people from real life concerns that have a profound impact on their lives.

A reporter or pundit doesn’t have to go very far to find critical issues that affect many of us: we have now turned the corner in Iraq so often that if it were a house, we would have rounded it about 10 times. Regardless of statistics, the economy is scary: Delta is bleeding billions; GM is shutting down plants- including the Doraville facility- that have provided tens of thousands of jobs to hard working, blue collar Americans; and Merck is laying off thousands and closing plants (including Albany’s) as its more valuable patents expire. Health care is a mess and Georgia’s Republican Governor has managed to alienate every State government employee and most doctors by inflicting United Health Care on them. If the Herald and Faux News commentators want to editorialize about transgressions of large American corporations, they might consider that 100,000 recently pink slipped American workers would be very pleased to have paychecks with “Happy Holidays” greetings tucked inside.

Oh, and by the way. While the Herald’s editor was conjuring up visions of naked emperors instead of sugar plums, she might have said a few words about the gentleman in high office who made the following statements in public places:

"They want the federal government controlling Social Security like it's some kind of federal program."

"Mr. Vice President, in all due respect, it is—I'm not sure 80 percent of the people get the death tax. I know this: 100 percent will get it if I'm the president."

"Brownie, you're doing a heck of a job."