Monday, December 7, 2009

Exposing the Underground Establishment Clause in the Supreme Court's Abortion Cases.

From AllianceAlert, the online site of the creepy "we stand for Truth" Alliance Defense Fund, an article that asks the Supreme Court to finish what it started with Roe v. Wade: to define the personhood of a fetus. Don't miss the passive-agressive nature of the sentence I've highlighted below.

Here's the abstract:

In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause – in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide.

The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis – rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment – is identical to the Establishment Clause requirement that legislation must be based on a secular purpose.

However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?

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The Power of Unions.

Reuters reports today that nurses unions have come together to create the largest lobby of medical professionals in the US, 150,000 members strong. I'm excited by the prospect of a labor-based lobby for universal health care and patients' rights. I look forward to hearing how those patients' rights are defined!

The story:

Three nurses unions merged on Monday to form the largest-ever labor organization for U.S. medical professionals, which is expected to wield greater clout in collective bargaining and the national healthcare debate.

Organizers said the new 150,000-member National Nurses United, comprising union locals from Maine to Hawaii, would use its strength to fight for patients' rights, higher healthcare standards and better working conditions for nurses.

Deborah Burger, president elect of the NNU and head of its largest constituent union, the California Nurses Association, called the merger a big step.

"It's a huge day ... not only for the nursing profession, but also for our patients," she said. "We will be able to go to the halls of Congress and advocate for stronger patient protection, for better healthcare."

The merger, approved unanimously by delegates at a founding convention in Phoenix, unifies the CNA, which has 83,000 members in California and several other states; the United American Nurses, with 45,000 members, mostly in the Midwest, and the 22,000-member Massachusetts Nurses Association.

The move comes as President Barack Obama is battling to rally support for his top domestic priority, an overhaul of the U.S. healthcare system that extends coverage to millions of uninsured people and curtails spiraling costs.

He faces sharp divisions among lawmakers in the Democratic-controlled Congress over his proposal for a new government-run insurance plan, or public option, an approach fiercely opposed by Republicans and private health insurers.


Burger said the merger would likely lend powerful support for the more progressive aims of the overhaul, but she said Obama's plan would not go far enough.

"What we've got now isn't really healthcare reform, it's a reshuffling of the deck chairs on the Titanic as far as our patients are concerned, and we're going to make sure that we ... have universal healthcare that is truly universal and has eliminated the insurance companies," she told Reuters.

Aside from a bigger voice in the healthcare debate, the merger is expected to give nurses greater leverage in collective bargaining after decades of growth in national hospital chains that have largely resisted union organizing.

Organized labor sees a big opportunity to bolster its ranks in the healthcare industry, a sector that has continued to create jobs during the recession and is expected to see 20 percent employment growth above 2006 levels by 2016, according to U.S. Labor Department statistics.

"This is where the jobs of the future lie," said Chris Tilly, director of the Institute for Research on Labor and Employment at the University of California, Los Angeles.

"Baby boomers like me are aging and will soon need a lot of nurses, so this is an area where there's going to be a lot of expansion. There's going to be a lot of hard political decisions to make, and they're anticipating that and forming this broader coalition to get into those debates," he said.

Plans to organize nonunion nurses will go hand-in-hand with a campaign to set national standards for lowering nurse-to-patient ratios, union leaders said.

"Today we are 150,000 strong, dedicated to a united mission: to organize every unrepresented direct-care registered nurse in America within the family of the National Nurses United," Karen Higgins, president of the Massachusetts nurses, said in a speech to the delegates.

They want "to ensure that every American has access to one single standard of high quality healthcare based on patient need, not corporate profit," Higgins said.

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The Price of Futile Hope.

I'm a couple days late on this article from the New York Times on the price of drugs with low efficacy rates. When a patient is dying of a disease that doctor's can't cure, they are encouraged to "not go gentle," to "fight to the end," to "pursue every possible option."

Decades of this has given us an environment where some will protest not having access to drugs that statistically have little chance of curing the disease, say less than 5%. But that chance is what some patients are encouraged by large drug companies and their (sometimes endorsed) doctors to take. It is a sad state that medicine is now in the business of fleecing dying patients in the name of false hope.

But the medical profession would much rather treat disease than prepare a patient for imminent death. We all tells our friends in crisis that everything will be "just fine." The truth is that there is no cure for death, not even a $65k a year drug.

A newly approved chemotherapy drug will cost about $30,000 a month, a sign that the prices of cancer medicines are continuing to rise despite growing concern about health care costs.

Fred R. Conrad/The New York Times

Preparing an anticancer drug. Many oncologists question the value of expensive anticancer drugs that can cost $30,000 a month but do not prolong life more than a few months.


The Development of a Cancer Drug(December 5, 2009)

Minh Uong/The New York Times

The price of the new drug, called Folotyn, is at least triple that of other drugs that critics have said are too expensive for the benefits they offer to patients. The colon cancer drugErbitux, for instance, costs $10,000 a month and the drug Avastin about $8,800 when used to treat lung cancer. The price of Folotyn “seems way higher than I heard of before,” Robert L. Erwin, president of the Marti Nelson Cancer Foundation, a patient advocacy group. “I can’t imagine there not being a backlash against the pricing.”

Drug makers in general have been raising prices sharply in advance of the possible passage of health care overhaul legislation, according to various studies. But the price of cancer drugs has been an issue for several years.

Critics, including many oncologists, say that patients and the health system cannot afford to pay huge prices for drugs that, on average, provide only a few extra months of life at best.

And Folotyn has not even been shown to prolong lives — only to shrink tumors. The drug was approved by the Food and Drug Administration in late September as a treatment for peripheral T-cell lymphoma, a rare and usually aggressive blood cancer that strikes an estimated 5,600 Americans each year. It is available for sale, but its manufacturer, Allos Therapeutics, does not plan to start actively promoting it until January.

Allos defends the price, saying it made a significant investment to develop the first approved drug for this type of cancer.

“It’s a very aggressive disease, and patients right now have no options,” said James V. Caruso, the chief commercial officer for Allos, a 17-year-old publicly traded company based in Westminster, Colo., that has no other drugs on the market.

Mr. Caruso also said the price of Folotyn was not out of line with that of other drugs for rare cancers. Patients, moreover, are likely to use the drug for only a couple of months because the tumor worsens so quickly, he said. So the total cost of using Folotyn will be less than for many other drugs with lower monthly prices.

“We believe we are fairly priced,” he added, “and we’re benchmarked” against other drugs. In a conference call with analysts last month, Mr. Caruso said Allos had “not had pushback of any type at this point” from insurers.

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The Down Side of Palliative Care Growth.

From GeriPal:

My worry: We may be deskilling other doctors. Unfortunately, if the patient is viewed as dying, the primary teams feel that they should back off and ask palliative care to "take over". So house staff and junior internal medicine house staff do not have the opportunity to have these conversations and receive feedback. And as concerning, rather than integrating palliative care into the mainstream of medicine, we ghetto-size it.

Now some caveats. My experience is that of a mature palliative care program and thus may not reflect others experience. Second, from a patient point of view, it may well be better that we are consulted and have these conversations. Third, my whining is probably no different than any other consult service (I can imaging the cardiologist complaining about "silly" consults for afib that they believe that the internist should be able to handle).

Still, I think this should remind those of us who do palliative care at academic centers that our role is as much educational as clinical care. Thus doing more consults is not the only metric by which we should measure our success. We should ask that the residents who consult us come to the meetings and - as much as their skills allow - participate. We should debrief with them after the meeting so that they know what were were trying to do and can learn the communication tasks. And we should think about innovative ways to support teams and promote their skill sets.

As I've often said, the medical profession already ghetto-izes end of life care. If it didn't, hospices wouldn't have to hold bake sales for funds and palliative medicine wouldn't just now be growing. This lack of attention in general medicine to end of life, dying, and pain cessation is an old saw. The profession would much rather find cures for disease and be heros for saving lives. Help the dying? Where's the glory in that. Isn't a dying patient a sign of a doctor's failure??

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I'm Just Delivering the USCCBs Talking Points.

When I attended the Pennsylvania Pro-Life Federation's state conference last October, I was aghast at, well a lot of things, but also at the lengthy end-of-the-event presentation on what exactly "pro-life" advocates, church members, parish members (most attendees were Catholic), and seniors (most were seniors) could do to "raise awareness" of "pro-life" issues in their communities.

The presenter included a hand out that described what exactly tax-exempt organizations could or could not do according to the law. Attendees were encouraged to "profess their faith" by talking to teens, contacting local TV channels, by sending conference updates to weekly newspapers, and by writing letters to the editor. Various hand outs and web sites suggested language to use, basically putting press releases into hands of the following faithful that they could then send to their local newspaper.

I'm seeing a rash of these letters lately. You can recognize them by their structure and points, all discussed at the conference and in churches and parishes across the US. The "grass roots" organization of it all is impressive, if you can get past the imposition on patients' rights and blatant discrimination. Here's an example from Lower Hudson Valley paper that reads like a paraphrase of the USCCBs points:

We can debate whether the current health-care plans raise the deficit or lower it (by raising taxes), whether the country can afford these plans or whether they represent a government takeover of health care and the start of a new bureaucracy. But for Catholics, there are three deal breakers: issues that must cost our support.

The first is that no taxpayer money should be used to pay for abortions. This has been the law for many years. The bill's promoters have tried to switch fund sources, but a plan that is subsidized by "taxpayer money" cannot include abortion. Seventy percent of the public does not think that taxpayer money should pay for abortion.

The second is that a plan must have a conscience clause exemption. In the current plans, a doctor or nurse's nonparticipation in a medical procedure on conscience grounds could result in job loss.

The third is that the plan, as much as possible, must lead to access to health care for all people since it's a human right. How this is accomplished the government must decide.

Lastly, the Catholic bishops promote the idea of subsidiary problems if possible should be addressed by the most local organization possible. Local organizations can respond more quickly and know the situation better.

Everyone supports health-care reform, so let's hope these deal-breakers are avoided so we can discuss the details.

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Aid in Dying and Health Care Reform.

Dr. Joseph Kincaid contests that the health care bill, as being debated by the senate right now, lacks the usual "pro-life" suspects. In some ways he's right. His desire, I would gather, is to impose greater restrictions on legal health care services in excess of existing Hyde guidelines. He also worries that Christian or "pro-life" providers won't be able to refuse services to patients' based on their (unrestricted, religious) personal views.

He's got other beefs too. To be clear, Kincaid wants to prevent or limit the the utmost legal services, in effect further eroding patients' rights to legal, ethical, moral, scientific health care treatments and information because he personally believes these patients shouldn't have them.
Get that? He knows what's good for you; he and others will decide what your moral health care decisions should be.

But I want to mention the funding issue he has with aid in dying, or assisted suicide. He writes:

The last area of concern is end-of-life care. On page 364, section 1553, there is a conscience clause protecting medical professionals who do not participate in assisted suicide. Reading between the lines, this means that the Senate bill has no prohibition on promoting assisted suicide or having it paid for under the plan. Also, in section 1323, page 186, a community health insurance option is prohibited from limiting access to end-of-life care. However, in Oregon, Washington, and Montana, assisted suicide is legally considered a form of end-of-life care. So the Senate bill would cover assisted suicide in these three states. Why is the Senate bill involved in assisted suicide? What medical treatment for the seriously ill is cheaper than the $100 cost for the drug that can be used in assisted suicide?

The Death with Dignity laws already allow doctors to deny patients' requests for assisted suicide. And the Assisted Suicide Funding Restriction Act of 1997 not only prevents federal funds from being used for AS but it prevents federal funds from being used by advocates of AS. In other words, his problem is not with existing law and the proposals in the health care bill. He's proposes use of the bill to further restrict the rights of those who request aid in dying.

This is not about reforming health care, really. Without a doubt this is about "pro-life" groups holding health care hostage unless they get to further limit the health services they ideologically oppose.

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The Separation of the Religious Right and State.

Kevin Duewel's take on the wall between state and religion:

The Separation of Church and State is understood to prohibit the mingling of government in religious affairs, and likewise prohibits the interference of institutionalized religion mingling in government affairs. What is not understood is that the Separation of Church and State isn’t actually prohibitive: it’s doctrinal. The difference is that a doctrine can only be upheld by practice. A prohibition, on the other hand, is institutional, and enforceable. The Separation of Church and State, in other words, does not necessarily prohibit religious leaders from being elected to office, or organized religion from petitioning government.

The doctrine of the Separation of Church and State comes from a 1802 letter to the Danbury Baptist Association by Thomas Jefferson, not from the Constitution, or from English common law — one of the bases of our written Constitution. An excerpt of the letter is as follows:

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.”

For reference, the section of the First Amendment of the Constitution that concerns religion reads, “Congress will make no law respecting the establishment of religion, or prohibiting the free exercise thereof…”

The First Amendment protects organized religion from government intervention; however, it does not shield government from the melding of organized religion — and I am not suggesting that government needs protection for that matter.

Jefferson’s notion of the Separation of Church and State, as we see in re-examining his words above, did not explicitly concern the involvement of men of faith in politics; it warned of the overreach of government in religious matters — and rightfully so. Alone the phrase “a wall of separation between Church & State” could be interpreted as a great wall, separating two volatile agents, or as a fortress, protecting the free practice of religion from the reach of the state. In the context of the letter and its addressee — the Danbury Baptist Association — it seems that Jefferson’s idea of the Separation of Church and State was more concerned with later than the former interpretation.

My point is that so long as men of faith keep their faith out of their politics, there is no conflict, neither constitutionally or in practice with the election of religious leaders to office. When men of faith make religion partisan or political, however, we have a problem. When religiousness becomes a partisan issue, one party becomes the political defender of the faith, and the other, the political opponent of the faith, and religious questions become policy questions — religion is politicized. Which is exactly what Thomas Jefferson warned of in his letter!

With an in-context re-reading of Thomas Jefferson’s letter, it becomes clear that Jefferson’s notion of a “wall of separation between Church & State”, means that ” religion is a matter which lies solely between Man & his God”. Religion is not supposed to be a matter between Man and his politics. With the country divided over social issues like Gay Marriage, Abortion, and prayer in school, somebody needs to remind the Religious Right that “the legitimate powers of government reach actions only, & not opinions”. What we need is not a separation of individual men of faith from office, but a separation of religious coalitions from state; i.e., a Separation of the Religious Right and State.

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Merry Xmas, All Good People!

I'm already tired of the whining claims of martyrdom Christians put out this time of year. What is the purpose of public displays on the holidays? Ministry? Missionizing? If such displays are for personal benefit, isn't display in the private home enough?

I particularly enjoy this writer's use of Anabaptists as justification of religious tolerance in the public square! Few understand better than the Anabaptists that compassion is an action demanded by faith, not lauded from a soap box and that religious freedom is best protected by government favoring no one religion. Separation of church and state is the best way to protect individual faith. Uh, can you say Radical Reformation?

And can we get some over-sized posters of Jan Luyken's Martyrs' Mirror engravings on Main Street, please?! A little graphic blood and gore suits my taste for the holidays just perfectly!

So what is one to make of the new campaign sponsored by atheists that says, “No God? That’s good. Let’s be good for goodness sake.” Who could argue with the last part? After all it comes from that famous Christmas carol, Santa Claus is Coming to Town. But what are we to make of the first part?

How do you argue in favor of something that doesn’t exist? Having a manger scene in the public square next to a menorah is not the establishment of religion on the part of the government that is prohibited in the Constitution. But demanding that all signs and symbols of religion be banned from the public, to me, comes pretty close to the state establishment of a religion called secularism. What was the point of the First Amendment prohibition of the establishment of religion?

Religion and America

The atheists will argue that a manger scene on public land is contrary to the establishment clause. How so, I ask? Specifically what religion is it establishing? Christianity? One of the reasons that the Founders created the establishment clause was to protect freedom of religion. Christianity is too broad a term to be considered an organized religion. If you don’t believe me, ask the Pilgrims, and the Quakers, and the Catholics, and the Menonites who fled the persecution that came with not swearing allegiance to the Church of England. They are all Christians and that was the whole point. The Founding Fathers did not want the new nation of the United States to form an official state religion and a specific form of worship and tyrannize anyone who did not adhere to it. Having a belief in God and adhering to a particular way of practicing it are not the same. It is easy to see that the Founding fathers manifestly believed in the former while protecting everyone’s rights to the latter. So the very argument that the atheists and the ACLU are making should be pointed at themselves, for they are demanding that everyone follow their religion to keep the public square naked.

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Theocracy on the Move.

La Figa reports on the theocratic efforts, seemingly benign, that are pressuring US and international governments, as demonstrated by Rick Warren's involvement in Uganda:

Rick Warren wrote his 1993 dissertation, New Churches For a New Generation: Church planting to reach Baby Boomers for his Doctorate of Ministry from Fuller Theological Seminar under Wagner’s supervision. Sarah Palin has been linked to Wagner through Thomas Muthee who cast out witches while blessing her at Wasilla Assemblies of God Church and Mary Glazier, one of the Prophets of Wagner’s inner circle of leadership, the Apostolic Council of Prophetic Elders.

Warren has a plan, P.E.A.C.E . (Promote reconciliation, Equip servant leaders, Assist the poor, Care for the sick and Educate the next generation) which TIME Magazine describes as

an attempt to radically re-engineer Evangelicalism’s huge missionary culture, connecting individual churches in the U.S. to congregations in target countries rather than funneling aid and evangelism through agencies that send trained professionals into the field.

C. Peter Wagner has a slightly different view of P.E.A.C.E., as religion writer Bruce Wilson explains on Talk2Action:

In his 2008 book “Dominion”, C. Peter Wagner describes the process through which this brand of Christianity can take dominion over government and society, and Wagner claims that this can be done within a democratic framework. Wagner clearly states that Rick Warren’s global P.E.A.C.E. Plan is an example of “stage one”:

“I think the P.E.A.C.E. plan fits most comfortably into Phase One, the ’social action’ phase of strategies for obeying God’s cultural mandate. The Phase Two emphases on strategic-level spiritual warfare and associated activities have not been placed front and center. And crucial to Phase Three, as I am defining it, are such things as apostolic/prophetic government of the Church, the Church (including apostles) in the workplace, the great transfer of wealth, dominion theology and the 7-M mandate.” [page 174, Dominion! How Kingdom Action Can Change the World, by C. Peter Wagner, published in 2008 by Chosen Books]

Rick Warren very close pals with Martin Ssempa who has appeared on stage at Saddleback Church, has burned condoms in the name of Jesus, called on newspapers to publish the names of known homosexuals and urged the imprisonment of gays.

A bill currently before Uganda’s Parliament would impose a life sentence as

minimum punishment for anyone convicted of having gay sex…If the accused person is HIV positive or a serial offender, or a “person of authority” over the other partner, or if the “victim” is under 18, a conviction will result in the death penalty. Members of the public are obliged to report any homosexual activity to police with 24 hours or risk up to three years in jail…

[W]ithin Uganda [is] deeply-rooted homophobia, aided by a US-linked evangelical campaign alleging that gay men are trying to “recruit” schoolchildren, and that homosexuality is a habit that can be “cured”…

Warren told Newsweek:

In 2007 we completely severed contact with Mr. Ssempa when we learned that his views and actions were in serious conflict with our own. Our role, and the role of the PEACE Plan, whether in Uganda or any other country, is always pastoral and never political. We vigorously oppose anything that hinders the goals of the PEACE Plan: Promoting reconciliation, Equipping ethical leaders, Assisting the poor, Caring for the sick, and Educating the next generation. (emphasis added)

Yet Warren inserted himself in the political process during Prop 8, by hosting presidential debate at Saddleback Church, and told the Orange County Register:

I believe in separation of church and state, but I don’t believe in separation of faith and politics.

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More Religion in Funerals, Please.

A curious column from Brit Martin Beckford at the Telegraph today. Eventually he gets around to funerals for soldiers who died in Afghanistan. Here's a clip:

If a society's attitude towards death reflects its view on religion, as I believe, then the Church of England could have big problems.

Just consider how much has changed in the past 12 months alone.

A year ago Debbie Purdy, the MS sufferer who wanted the Crown Prosecution Service to declare in advance whether her husband would face arrest if he helped her end her life at Dignitas, the Swiss suicide clinic, lost her case at the High Court.

But over the summer the Law Lords ruled that she was entitled to know the circumstances in which such prosecutions would be launched, and the Director of Public Prosecutions has gone as far as he can to decriminalise assisted dying in this country as well as for Britons travelling abroad.

Peers led by a former Lord Chancellor almost succeeded in achieving a similar result. Although the Church and other denominations have made their voices heard in this debate, they are up against a very slick PR operation run by supporters of assisted suicide.

This is being aided by articulate and successful families - the sort newspapers like to feature - who are prepared to publicise their relatives' deaths. One couple effectively sent their suicide note, expressing their anger at current laws on assisted dying, to the BBC.

They are undoubtedly winning both the propaganda war as well as the legal one, suggesting that most people would now rather have the option to end their lives of those of their loved ones at the time of their choosing, rather than accept suffering and the traditional Christian view that life is given by God and is not ours to take away.

Religious leaders also appear to be the main voices speaking out against the Liverpool Care Pathway, the method of removing treatment from patients thought to be nearing death, which has also come to prominence in 2009 and is now in place in more than 1,000 hospitals, nursing homes and hospices.

The most high-profile death of the year was that of Michael Jackson, and the reaction to it suggests society at large now treats dying as just another stage in a public figure's career rather than the end of it, or a cause for prayer and reflection. I saw jokes about his passing flash up on Twitter before it had even been confirmed by the emergency services.

The popularity of "green" burials - in biodegradable coffins with saplings planted instead of tombstones - reinforces the truth of another of this year's important legal rulings, that environmentalism is now a type of religion.

And when people have funerals they want their favourite pop songs played either to give those they have left behind a wry smile, or because they think them more meaningful than hymns.

Father Ed Tomlinson complained recently that he was left feeling "like a lemon" when he conducted services to the decidedly non-Christian strains of My Way or Over the Rainbow.

But many commentators disagreed with his sentiment, again taking the view that individual choice must trump sacred tradition.

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