Monday, January 14, 2013
BC Doctor's research exposes Vaccines as a fraud!!
1 The vaccination policy and the Code of Practice of the Joint Committee on Vaccination and Immunisation (JCVI): are they at odds? Lucija Tomljenovic, PhD Neural Dynamics Research Group, Dept. of Ophthalmology and Visual Sciences, University of British Columbia, 828 W. 10th Ave, Vancouver, BC, V5Z 1L8, email@example.com Introduction No pharmaceutical drug is devoid of risks from adverse reactions and vaccines are no exception. According to the world’s leading drug regulatory authority, the US Food and Drug Administration (FDA), vaccines represent a special category of drugs in that they are generally given to healthy individuals and often to prevent a disease to which an individual may never be exposed . This, according to the FDA, places extra emphasis on vaccine safety. Universally, regulatory authorities are responsible for ensuring that new vaccines go through proper scientific evaluation before they are approved. An equal responsibility rests on the medical profession to promote vaccinations but only with those vaccines whose safety and efficacy has been demonstrated to be statistically significant. Furthermore, vaccination is a medical intervention and as such, it should be carried out with the full consent of those who are being subjected to it. This necessitates an objective disclosure of the known or foreseeable risks and benefits and, where applicable, a description of alternative courses of treatment. In cases where children and infants are involved, full consent with regards to vaccination should be given by the parents. Deliberately concealing information from the parents for the sole purpose of getting them to comply with an “official” vaccination schedule could thus be considered as a form of ethical violation or misconduct. Official documents obtained from the UK Department of Health (DH) and the Joint Committee on Vaccination and Immunisation (JCVI) reveal that the British health authorities have been engaging in such practice for the last 30 years, apparently for the sole purpose of protecting the national vaccination program. Here I present the documentation which appears to show that the JCVI made continuous efforts to withhold critical data on severe adverse reactions and contraindications to vaccinations to both parents and health practitioners in order to reach overall vaccination rates which they deemed were necessary for “herd immunity”, a concept which with regards to vaccination, and contrary to prevalent beliefs, does not rest on solid scientific evidence as will be explained. As a result of such vaccination policy promoted by the JCVI and the DH, many children have been vaccinated without their parents being disclosed the critical information about demonstrated risks of serious adverse reactions, one that the JCVI appeared to have been fully aware of. It would also appear that, by withholding this information, the JCVI/DH neglected the right of individuals to make an informed consent concerning vaccination. By doing so, the JCVI/DH may have violated not only International Guidelines for Medical Ethics (i.e., Helsinki Declaration and the International Code of Medical Ethics)  but also, their own Code of Practice (http://www.dh.gov.uk/prod_consum_dh/groups/ dh_digitalassets/@dh/@ab/documents/digitalasset/dh_115363.pdf). The transcripts of the JCVI meetings also show that some of the Committee members had extensive ties to pharmaceutical companies and that the JCVI frequently co-operated with vaccine manufacturers on strategies aimed at boosting vaccine uptake. Some of the meetings at which such controversial items were discussed were not intended to be publicly available, as the transcripts were only released later, through the Freedom of Information Act (FOI). These particular meetings are denoted in the transcripts as “commercial in confidence”, and reveal a clear and disturbing lack of transparency, as some of the information was removed from the text (i.e., the names of the participants) prior to transcript release under the FOI section at the JCVI website (for example, JCVI CSM/DH (Committee on the Safety of Medicines/Department of Health) Joint Committee on Adverse Reactions Minutes 1986-1992; http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306). BSEM March 2011 The Health Hazards of Disease Prevention 2 Assertions In summary, the transcripts of the JCVI/DH meetings from the period from 1983 to 2010 appear to show that: 1) Instead of reacting appropriately by re-examining existing vaccination policies when safety concerns over specific vaccines were identified by their own investigations, the JCVI either a) took no action, b) skewed or selectively removed unfavourable safety data from public reports and c) made intensive efforts to reassure both the public and the authorities in the safety of respective vaccines; 2) Significantly restricted contraindication to vaccination criteria in order to increase vaccination rates despite outstanding and unresolved safety issues; 3) On multiple occasions requested from vaccine manufacturers to make specific amendments to their data sheets, when these were in conflict with JCVI’s official advices on immunisations; 4) Persistently relied on methodologically dubious studies, while dismissing independent research, to promote vaccine policies; 5) Persistently and categorically downplayed safety concerns while over-inflating vaccine benefits; 6) Promoted and elaborated a plan for introducing new vaccines of questionable efficacy and safety into the routine paediatric schedule, on the assumption that the licenses would eventually be granted; 7) Actively discouraged research on vaccine safety issues; 8) Deliberately took advantage of parents’ trust and lack of relevant knowledge on vaccinations in order to promote a scientifically unsupported immunisation program which could put certain children at risk of severe long-term neurological damage; Notably, all of these actions appear to violate the JCVI’s own Code of Practice (http:// www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@ab/documents/digitalasset/ dh_115363.pdf). BSEM March 2011 The Health Hazards of Disease Prevention 3 Evidence I here provide the evidence in support of each of the above assertions. (Note: emphasis added throughout the text as underlined are by the author unless otherwise indicated) 1) Instead of reacting appropriately by re-examining existing vaccination policies when safety concerns over specific vaccines were identified by their own investigations, the JCVI either a) took no action, b) skewed or selectively removed unfavourable safety data from public reports and/or c) made intensive efforts to reassure both the public and the authorities in the safety of respective vaccines. As early as 1981, the JCVI had substantial documentation which associated the measles vaccine with serious adverse reactions including death and long-term adverse neurological outcomes. At the JCVI meeting held on 9th April 1981 (http://www.dh.gov.uk/ab/ DH_095169), in discussing a paper that summarised all the reports of adverse reactions to the CSM, the following was noted: (5.b.) Adverse Reactions to measles vaccine “All reports since 1970 of encephalitis, encephalopathy or sudden death shortly after vaccination had been reviewed; 60 patients were involved of whom 8 had died, 36 had made an apparent complete recovery and 16 were left with permanent sequelae. The high proportion of deaths and patients with sequelae was surprising in comparison with the findings of the NCES [National Childhood Encephalopathy Study].”(5.b. Adverse Reactions to measles vaccine) By 1983, the JCVI appeared to have had more evidence that the measles vaccine could cause encephalitis associated with “severe handicap” in a subset of vulnerable children. At the JCVI meeting on 17th of June 1983 (http://www.dh.gov.uk/ab/JCVI/DH_120115), the Committee on Safety of Medicines (CSM) received 66 reports of suspected adverse reactions to measles vaccines over the period January 1982 to April 1983. According to the transcript of the meeting: (7. Suspected adverse reactions to measles vaccine: recent reports to the CSM) “These included three cases of encephalitis; on follow-up, two of these patients were left one year later with severe handicap and the third patient, after a year, appeared to be developmentally normal.” By the end of 1981 serious safety concerns have also been raised with regards to another routine paediatric vaccine, the whooping cough vaccine. At the meeting held on 3rd November 1981 (http://www.dh.gov.uk/ab/DH_095169) in section 5 on Whooping Cough: (5.d. Comments on Professor Stewart’s letter) “Professor Gilliatt observed that in the Meade Panel Study one-third of children with brain damage were not admitted to hospital. In both the Meade and Dudgeon studies there were examples of children who had a fit soon after vaccination which was followed by a fit at a later time and then followed by cessation of development. It was very difficult to assess this as a random event.” Furthermore: “The Chairman concluded that much was not known about the natural history of brain damage in the young.” In spite of this, three years later, at the meeting on 25th of April 1986 (http:// www.dh.gov.uk/ab/DH_095169), the JCVI concluded their discussion on suspected adverse BSEM March 2011 The Health Hazards of Disease Prevention 4 reactions for the period 19th September 1985 to 15th of January 1986 with the following statement: (11.4) “The Committee agreed to a suggestion from the Chairman that in future it would accept reports on adverse reactions as “for information” only.” [their emphasis added-quotation marks] It is somewhat perplexing why the JCVI adopted what appears to be a rather passive approach to vaccine safety, in light of the severe adverse reactions that were reported at that meeting. These included cot deaths, convulsions and anaphylaxis (11.4). The JCVI appeared to have had other solutions for dealing with vaccine safety concerns. In a “commercial in confidence” CSM/JCVI/Joint Sub-Committee on Adverse Reactions to Vaccination and Immunisation (ARVI) meeting on 7th February 1986 (http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306), in a discussion about a surveillance study on adverse reactions to two measles vaccines, the members noted that: “...results showed that 70 per cent of children were well after receiving Attenuvax and 61 per cent after receiving Rimevax. If children with mild general reactions were added to those who were apparently well then the numbers associated with Attenuvax were 85 per cent and those with Rimevax 80 per cent.” (7.1 PHLS [Public Health Laboratory Service] surveillance of adverse reactions to two measles vaccine (Rimevax and Attenuvax)) In other words, even skewing the data by adding cases of mild reactions to those who were “apparently” well, did far from producing a reassuring statistic in favour of the safety of the measles vaccines, as it still implied a rate of 15-20% of vaccine-associated serious adverse reactions (as opposed to 30-39% of mild-to-serious adverse reactions in total). After further discussion on this topic: “...it was agreed there was now enough information to stop the study.” While at the same time, there appeared to be no incentive to reconsider the current immunisation policy, in fact, it seemed more reasonable to conclude that some of the suspected adverse reactions to measles vaccine: “...were unlikely to be associated with the use of measles vaccine and were more likely to be temper tantrums.” (7.2 Suspected adverse reactions to measles vaccine: a summary of recent reports to the CS, June 1983 to September 1985) The summary of suspected adverse reactions to DTP vaccine administered alone or with oral polio (OPV) during the period 19th September 1985 to 15th January 1986, presented at the same “confidential” meeting (CSM/JCVI/Joint Sub-Committee ARVI, 7th February 1986) were more difficult to ascribe to “temper tantrums”: (9.(1)) “Ninety such adverse reactions have been registered. These included six patients with convulsions, one a patient with abnormal fever following vaccination and one patient with apparent cerebral irritability; in addition two cot deaths were reported. (i) Case No. 154043 A three-month old boy who after his first dose of Trivax AD and OPV on 17 September 1985 was found dead 18 hours after immunisation....(ii) Case No. 154080 A three-month old girl who received her first dose of Trivax and OPV on the 19 September 1985 and was found dead on the night of 21/22 September 1985. No initial adverse reaction to vaccination was reported and the cause of death was stated as SIDS.” [sudden infant death syndrome] By mid to the late 1980s, the JCVI had become increasingly concerned about publicly associating the terms “death” and/or “brain damage” with the word “vaccine”, because of the negative BSEM March 2011 The Health Hazards of Disease Prevention 5 repercussions they perceived this would have on vaccination policy (CSM/JCVI/Joint Sub-Committee ARVI meetings on 7th February 1986; 3rd October 1986; http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306). Such concerns were also exacerbated by the increasing burden of litigations about pertussis vaccine-suspected injuries (JCVI meeting on 22nd April 1988; 20th October 1988; http:// www.dh.gov.uk/ab/DH_095169), and the possibility that vaccination could be linked to some cases of SIDS, as evident from the Reports on Yellow Cards quoted above. At the meeting on 22nd April 1988 (http://www.dh.gov.uk/ab/DH_095169), in an ongoing discussion about the Loveday v Renton litigation, the Chairman: “...reminded members that they had asked for a list of documents disclosed. JCVI (88)1 provided such a list, but it should not be made public. Dr Salisbury said that the Department’s solicitors had advised that a part of the section on whooping cough in the revised Memorandum was in conflict with the judgement in the above-mentioned case. They had recommended that any statement on the risk of neurological reaction should avoid any estimate of the size of the risk of death or permanent brain damage. Dr Salisbury said that paragraph 3.4.1c of the section on whooping cough in the Memorandum had been modified accordingly and this modification was tabled. Professor Miller observed that the conclusion to be reached from the judgment of the Court and from the assessment of the scientific evidence of risk of neurological reactions and their consequences, were not necessarily the same. The legal judgement was that there is insufficient evidence, on the balance of probabilities that the vaccine causes permanent damage to allow any claim for damages to succeed. The JCVI was concerned with the implications of scientific assessment of the evidence for vaccine policy purposes. On this basis he was content to quote the figure for attributable risk of serious neurological illness without giving a figure for the risk of permanent damage, which was consistent with the conclusion of the NCES quoted in the Whooping Cough Report 1981.”(Item 5, page 4 – Loveday v Renton) The extent of the JCVI’s concerns with the implications of scientific assessment of vaccine safety on vaccine policy explains why they were opposed to any long-term surveillance for severe neurological disorders following vaccination. In fact, as it will be shown below in greater detail, the CSM/JCVI/ARVI considered such studies “unreasonable” and paradoxically, ARVI even “deprecated the use of the term ‘brain damage’” (CSM/JCVI/Joint Sub-Committee ARVI meeting held on 7th February 1986; h t t p : / / w w w . d h . g o v . u k / e n / F r e e d o m O f I n f o r m a t i o n / Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306). In 1989, 10 years prior to the “controversial” Lancet report by Wakefield et al. , the JCVI appeared to have been fully aware of the outcomes of the investigation carried out by the National Institute for Biological Standards and Control (NIBSC), which unequivocally established a link between the mumps component of the MMR vaccine (the Urabe-9 strain) and cases of vaccineinduced meningitis/encephalitis. In response to this, the JCVI appeared to have actively engaged in skewing and censoring data available to the public, continued to use the Urabe-9 containing MMR vaccines and made intensive efforts to reassure both the public and the authorities of the safety of all MMR vaccines. According to the transcript of the JCVI meeting on 3rd November 1989 (http://www.dh.gov.uk/ab/ DH_095169), the causal agent of vaccine-induced meningitis/encephalitis was unequivocally identified: (9. ARVI Committee – Minutes of meeting 6 October 1989 (JCVI (89)25) “Prof Collee expressed gratitude to the NIBSC for the progress it achieved in developing techniques to identify wild and vaccine virus strains. Dr Schild reported that NIBSC was now able to distinguish clearly the wild strains from each of the two vaccines, and isolates from CSF clearly showed Urabe in all three cases believed to be associated with vaccine-although it should not be assumed that Jeryl-Lynn is not capable of the same result. Professor Collee added that no mumps vaccine could be said to be void of risk. Dr Schild said NIBSC would be happy to continue analysing samples.” BSEM March 2011 The Health Hazards of Disease Prevention 6 In the following meeting on 17th September 1990, the JCVI CSM/DH Joint Sub-Committee on Adverse Reactions (http://www.dh.gov.uk/ab/JCVI/DH_095294), on reviewing the adverse reactions to the MMR vaccine reported on Yellow Cards, applied the following criteria to the assessments: (6.3.1.) “Definite=Virus isolated from CSF [cerebrospinal fluid], time course of 14-28 days; Possible/probable=Cells isolated from CSF, no virus in CSF, acceptable time course” [their emphasis added-underlined] The transcript then states: “It was noted that there were 10 definite cases of meningitis/encephalitis.” Both definite and probable cases were then discussed in some detail: (6.3.4.) “It was noted that the mumps viruses obtained from two out of three cases from Nottingham were sequenced and shown to be vaccine related. The patients had all been vaccinated from different batches and did not live close to each other.” At the 17th September 1990 meeting (http://www.dh.gov.uk/ab/JCVI/DH_095294), the JCVI CSM/DH Joint Sub-Committee on Adverse Reactions did recognize the need to do a followup analyses for long-term neurological outcomes in all cases of meningitis/encephalitis associated with the MMR vaccine. It was also recognized that the current avenues for adverse reactions reporting (via the Yellow Card, the British Paediatric Surveillance Unit (BPSU) scheme, directly to Communicable Disease Surveillance Centre (CDSC) and through Laboratory reports) were inadequate for detailed epidemiological evaluations. The JCVI CSM/DH Joint Sub-Committee then stated that: (6.4) “In order to further validate vaccine related illnesses, fuller studies would be required.” Despite these unresolved safety issues, the conclusion reached at the meeting was that: (6.7) “There should be no change in the present recommendations or supply of MMR vaccine on the evidence available to us at the present time.” Thus, instead of re-evaluating the vaccination policy, at least until safety concerns were fully evaluated, the JCVI choose to support the existing policy based on incomplete evidence that was available at that time. Furthermore, at the 17th September 1990 meeting (http://www.dh.gov.uk/ab/JCVI/ DH_095294), the JCVI appeared to have been fully aware of increasing numbers of cases of mumps vaccine-associated aseptic meningitis occurring in Japan, since at the time of the meeting, they had been presented with a draft of a study by Sugiura et al. . The Japanese study found that among 630,157 recipients of the MMR vaccine containing the Urabe-9 mumps vaccine, there were at least 311 meningitis cases suspected to be vaccinerelated. In 96 of these 311 cases, mumps virus related to the vaccine was isolated from the CSF. Sugiura et al.  noted that this was an unusually high incidence of vaccine-related adverse outcomes, which they had attributed in part to “adverse media publicity”. Nonetheless, the fact that in almost one third of the cases, the vaccine strain had been isolated from the CSF of children, suggests that safety concerns over the MMR were warranted. Indeed, in 1993 the Japanese suspended the use of the MMR vaccines containing the Urabe strain due to it causing a high incidence of aseptic meningitis, and reverted to the use of monovalent measles, mumps and rubella vaccines. According to Japanese Health Authorities, the withdrawal of the MMR had not caused an increase in deaths from wild BSEM March 2011 The Health Hazards of Disease Prevention 7 measles infection. Noteworthy, in a BBC news report (http://news.bbc.co.uk/2/hi/asiapacific/ 1808316.stm), a spokesperson for the Japan’s Health Ministry stated that: “...more children had died from the disease during the period when MMR was being used.” In reference to the Japanese study, the JCVI transcript specifically states: (6.6) “The paper confirmed information from Japan previously disclosed to ARVI.” This suggests that the JCVI knew for some time that the Urabe-9 vaccine was causing problems and yet, did not consider the possibility to temporarily suspend its use. Furthermore, four months prior to the 17th September 1990 meeting, at the JCVI 4th May 1990 meeting (http://www.dh.gov.uk/ab/DH_095169), ARVI expressed concerns regarding the reports from Japan. The major reason for these concerns was not that the JCVI/ARVI were in favour of using the Urabe-9 vaccine which was now associated with increased risk of meningitis/encephalitis in children, but rather: (9.1.) “Professor Banatvala was concerned about the possibility of the Japanese experience being published widely in the UK, and urged the gathering of information on the various episodes from all MMR manufacturers.” ARVI also reached a rather surprising conclusion that: “The Japanese experience may be due to different reporting/investigating criteria or other local factors.” However, if this were the case, “the Japanese experience” would have been an isolated event. That this was not the case can be clearly seen from further readings of the JCVI 4th May 1990 meeting transcript (http://www.dh.gov.uk/ab/DH_095169): (9.3.a.) “Dr Thores spoke to the letter, JCVI/90/10, from Dr McIntyre. He highlighted SHHD [Scottish Home and Health Department] concern about the Canadian decision not to use Urabe strain vaccine, the cases of neurological complications in Japan, the seeming bias of the UK adverse reactions towards Scotland, and the continued use of vaccine distribution figures as the denominator when calculating adverse reaction rates.” In spite of this, instead of re-evaluating or suspending the existing MMR vaccination policy due to safety concerns, the JCVI called for a specific and concentrated effort aimed at counteracting the growing public and health authorities’ concern over the safety of the Urabe-9 MMR vaccines. (9.3.c.) “Professor Peckham told the Committee that she was aware of three districts changing from use of Urabe to Jeryl Lynn vaccine, and therefore the Committee needed to reassure authorities of the safety of all MMR vaccines.” Hence, it appears that the JCVI’s solution to the growing problem regarding the MMR vaccine safety issues was to provide as little information as possible to health practitioners, in order to preserve the JCVI’s vaccination policy. If this assumption is correct, does it suggest that the JCVI was more concerned about boosting vaccine uptake than child safety? (9.3.e.) “The Chairman asked the Committee if it thought necessary to draw up a statement about MMR.” BSEM March 2011 The Health Hazards of Disease Prevention 8 (9.3.g.) “Professor Hull suggested a simple sheet with ARVI’s evaluation of the vaccines. This would let doctors know that an expert committee had looked at the situation and perhaps reassure them.” What appears to be a rather inadequate handling of the MMR safety concerns on behalf of the JCVI did not make the problem go away. Only a year later, at 1st November 1991 meeting (http://www.dh.gov.uk/ab/JCVI/DH_095050), unable to resolve the continuing MMR safety issues the JCVI turned to vaccine manufacturers for help: (7.1 Report on MMR) “On adverse reactions to the vaccine, the most worrying reports had been studies which showed problems with the Urabe vaccine, particularly Mumps Meningitis. Reports had also come from overseas countries, Canada being the most helpful….of 67 reported cases between October 1988 and August 1990, 38 children had definite or probable Aseptic Meningitis and one Encephalitis. Ten of these were definitely caused by the vaccine, and a further 29 were probably caused by the vaccine. Of these 39 children, 37 were followed up at 12 months. 33 (or 89%) were neuro-developmentally normal. Of the remaining four, two had neuro-developmental problems before being given MMR, one had behaviour problems and one had a cerebral astrocytoma. There had been eight reports of nerve deafness although one was pre-MMR; six needed further investigation. The over-all picture was that there were 3.7 cases per 100,000 doses of Urabe vaccine and no cases reported with the Jeryl Lynn vaccine. However, the MSD [Merck Sharp and Dohme] vaccine was generally not well accepted because of pain at the injection site. Urabe is the most reactogenic vaccine but some data suggested that it may also be the most immunogenic. It was impossible to make a firm decision about this until all information had been collected.” (Note: it ought to be asked why the UK health authorities thought it was appropriate to vaccinate children with neurodevelopmental problems and cerebral astrocytoma with a vaccine that had caused substantial worries to them over its association with adverse reactions affecting the brain). (7.2 Discussions with Manufacturers) “Dr Salisbury reported on his recent meetings with Merieux, MSD and SKB [Smithkline Beecham]. Information was shared and details of adverse events discussed. The manufacturers felt that the Department’s line-that is, surveying adverse events and checking immunogenicity-was correct.” Again, the JCVI appeared to have adopted a passive approach to the problem and made no apparent efforts to identify specific sub-groups of children who may have been more prone to adverse reactions to the MMR. At the meeting that followed on 1st May 1992 (http:// www.dh.gov.uk/ab/JCVI/DH_095050), the same conclusions were reiterated in light of the continuing MMR crisis, with an additional concern that the actual number of vaccineassociated aseptic meningitis cases might have been higher, due to suspected underreporting: (7.4 Report of North Herts Immunogenicity Study (Dr Elizabeth Miller)) “The report of a cluster of CSF mumps virus positive cases in Nottingham had caused concern that national surveillance may have been underreporting the incidence of cases; a meeting had been held to discuss the Nottingham situation and the national data....In Nottingham all children with febrile convulsions were lumbar punctured, unlike some other areas from where reports had been received (Preston and Ashford) .The Committee agreed that no conclusion could be reached until the full immunogenicity results were available as well as the full analysis of the Nottingham and other data.” In the meantime, no changes were made to the immunisation policies. Would a seemingly passive approach to child health and safety, suggest that the JCVI in essence agreed to the fact that during the surveillance for the purposes of “for information only”, some cases of BSEM March 2011 The Health Hazards of Disease Prevention 9 suspected vaccine-induced convulsions, meningitis/encephalitis and deaths in children would just have to be tolerated? Note also that for using the same technique of lumbar puncture, 18 years later, Dr Andrew Wakefield who investigated a consecutive series of children with chronic enterocolitis and regressive developmental disorder which appeared to have been linked to MMR vaccination, was charged and found unfit to practice medicine by the UK General Medical Council (GMC). According to the GMC hearing, lumbar puncture in children with MMR-suspected adverse neurological outcome was apparently ”not clinically indicated” (http://www.gmc-uk.org/static/documents/content/ Wakefield__Smith_Murch.pdf). In July 1992, the data from Nottingham became available, nonetheless, it took another two months before the JCVI and the DH finally decided to take action, apparently not so much because of safety concerns but more so because of the legal advice given to the manufacturers by their lawyers in response to which the manufacturers decided to stop producing the Urabe-9 containing MMR vaccines. According to the transcript of the JCVI meeting on 6th November 1992 (http:// www.dh.gov.uk/ab/JCVI/DH_095050): (8.1 Report to Sub-Committee on SEAR/CSM: Dr David Salisbury) “In August, Department of Health officials met with MCA [Medicines Control Agency] and the manufacturers. At the end of August SKB, acting on the advice of their lawyers, decided to stop producing vaccine and advise licensing authorities world wide accordingly; the Department had, therefore, to act quickly.” Thus, only when the alarm was sounded by the manufacturers’ lawyers did the DH sense that the matters regarding the safety of the MMR vaccine required some urgency. In addition, it appears that the principal preoccupation of the European Authorities was how to preserve global vaccine policies in face of the Urabe-9 scandal. “On the 3 and 4 September the Chief Medical Officers of European Community countries were advised in confidence of the situation at a routine meeting. ARGOS/SEAR [Sub- Committee on Safety, Efficiency (SEAR) and the Adverse Reaction Group of SEAR (ARGOS)] agreed on 4 September that no action would be taken to revoke the manufacturer’s license as a change of purchasing policy was to be made by the Department; revoking the license would have caused a world-wide vaccine crisis.” The actual rate of aseptic meningitis after the MMR vaccination was discussed later on the JCVI 6th November 1992 meeting agenda (http://www.dh.gov.uk/ab/JCVI/DH_095050): (8.7 Risk of aseptic meningitis after MMR vaccination in UK children: Dr Elizabeth Miller) “The overall risk of this complication in the UK was 1 per 10,000 immunised children but, in Nottingham, this had increased to 1 in 4,000. Tests in Canada in 1989 had associated the Urabe vaccine with meningitis. The linking of laboratory records of CSE samples with district computer databases on immunisation had been very effective. The Committee was told that all the countries which had had a choice had switched from the Urabe to Jeryl Lynn;” What is rather astonishing is that the four-year old Canadian concerns over the safety profile of the MMR vaccine (which had been confirmed in 1989), were apparently ignored by the JCVI or at least, not given much credence. While the Canadian Health Authorities suspended the use of the Urabe-9 MMR in 1988, the UK introduced it along with a vigorous promotional campaign. In a confidential meeting of the JCVI Working Party on the introduction of measles, mumps, rubella (MMR) vaccine on 11th February 1988 (http://www.dh.gov.uk/ab/JCVI/DH_095297): (5. MMR vaccination in Canada) “Members read a report of cases of mumps encephalitis which had been associated with MMR vaccine containing the URABE strain of the mumps virus. The Canadian authorities had suspended the licences of MMR vaccines containing the URABE strain, but Dr Salisbury considered that the data on which the decision had been based was slender.” BSEM March 2011 The Health Hazards of Disease Prevention 10 The JCVI also had a specific plan to combat any adverse publicity in case any of this “confidential” information was to reach the public: “A statement would be prepared in anticipation of any adverse publicity which might arise.” (7. Publicity) “A paper prepared by the MMR Publicity Group was presented, by Mr Flaherty and Mr Reid, for the Group to discuss and to approve the general approach it contained. Dr Ross considered that the priority was to get the message across to doctors, health visitors and nurses.” Finally, the JCVI also had a number of funding strategies in place to promote the introduction of the MMR: (9. Funding situation) “£800,000 had been set aside for publicity and £1.4 million had been set aside to cover the period October 1988 - March 1989 to assist health authorities with increased vaccine costs, the education of professionals and for the re-programming of child computers. Members noted that the Statement of Fees and Allowances would need altering to include item of service payment for MMR.” This latter strategy was further refined on the JCVI Working Party on the introduction of MMR vaccine following meeting, on 17th May 1988 (http://www.dh.gov.uk/ab/JCVI/DH_095297): (3. Matters Arising) “Dr McGuiness suggested that instead of an item of service payment GPs might be paid according to their immunization rates.” In spite of carefully elaborated advertising and substantial investments, the JCVI did not entirely succeed in countering public concerns over vaccine safety, as on 6th October 1989 (http:// www.dh.gov.uk/ab/JCVI/DH_095294): (5.2.6) “The meeting’s further sadness was expressed over the press reports, which could have harmful implications and unnecessarily damage public confidence in vaccines.” Regrettably, similar sadness was apparently not expressed by the JCVI members over a report of a vaccine-suspected death of a 16 month old child, which was discussed at the same meeting. Rather: (5.2.4) “This was a fiscal case and as such was highly confidential. Doubts were expressed about the cause of death, and while it was not possible to give clear judgement, it was felt that there was unlikely to have been a causal relationship with the vaccine and that this was an unusual case.” Science should be based on facts and experimental evidence, not feelings. As for the alleged “slender” Canadian data on safety hazards of the SKF (Smith Kline and French) Urabe MMR vaccine, in a confidential JCVI CSM/DH Joint Sub-committee on Adverse Reactions meeting on 7th March 1990 (http://www.dh.gov.uk/ab/JCVI/DH_095294) the following was disclosed: (6. Adverse reactions to MMR vaccine) “In Canada, the MSD vaccine had been used exclusively [Jeryl Lynn strain-containing MMR]. Following the introduction of SKF product, the cases of meningoencephalitis had been BSEM March 2011 The Health Hazards of Disease Prevention 11 reported. When distribution of the SKF vaccine was halted, no further cases of meningoencephalitis were reported.” Yet, from this clear evidence, the JCVI derived a conclusion that somewhat seems to defy logic: “It was suggested that, due to different reaction criteria and methods of data collection, reporting in different countries should not be compared.” In summary, the JCVI endorsed and promoted a policy of vaccinating every child in the UK with the Urabe-9 MMR vaccine, in spite of the evidence that this would have caused a greater risk of encephalitis in children, when compared to the alternative Jeryl Lynn version of the MMR. It was only under pressure from a potential legal action that the JCVI and DH decided that it was due time “to act quickly” and withdraw the Urabe MMR from use in routine vaccinations. 2) Significantly restricted contraindication to vaccination criteria in order to increase vaccination rates despite outstanding and unresolved safety issues. Already in the early 1980s, the public confidence in the safety of the whooping cough (pertussis) vaccine has been eroded and since the uptake of the vaccine was relatively low, the JCVI sought ways to improve immunisation rates. According to Sir Charles Stuart-Harris, at the JCVI meeting on 3rd November 1981 (http://www.dh.gov.uk/ab/DH_095169) in section 5 on Whooping Cough: (5.c. Whooping Cough Vaccination Campaign) “...a 40% uptake of the vaccine ensured continuance of the disease; the uptake rate had to be improved.” The transcripts of the JCVI meetings from 1981 to 1986 indicate that the Committee did not know what was the risk/benefit balance of whooping cough vaccination in children who were potentially more at risk of vaccine associated-adverse outcomes. In spite of this, the JCVI went on with restricting contraindication criteria so that more children could be vaccinated. The JCVI also seemed to have been more preoccupied with protecting the "reputation of the vaccine" rather than protecting potentially vulnerable individuals, as the former served a basis for defining certain contraindication criteria. In 1981, a Working Group on Contra-indications to Whooping Cough Vaccination had been set up because ARVI, which had been asked by the JCVI to consider contraindication to whooping cough vaccine, had not been able to reach an appropriate agreement on this issue. At a beginning of the meeting of this Working Group on 1st May 1981 (http:// www.dh.gov.uk/ab/JCVI/DH_120115), it was noted that: “It was extremely important that the present meeting should reach an agreed conclusion because the reports on whooping cough were to be published on the 12 May, and it was desirable for any new contra-indications to be ready as soon as possible after this date.” and: “When considering the question of contraindications, the general principle to be borne in mind was that the right balance had to be struck between the need to keep acceptance rates for vaccination as high as possible and the need to protect groups of children who had an increased risk of adverse reaction to vaccination.” Assuming that the whooping cough vaccine is effective in preventing whooping cough, this principle indeed appears to be sound. Curiously however, one of the first items to be discussed under this agenda was that of respiratory illnesses and whether these should be regarded as a contraindication to whooping cough vaccination. Some members thought that respiratory illnesses ought to be deleted from the list of contraindications. Others however: BSEM March 2011 The Health Hazards of Disease Prevention 12 “...thought that the reference to respiratory disease was not really a contra-indication; rather it was a move to protect the reputation of whooping cough vaccination by avoiding an association between vaccination and SIDS.” Since apparently: “Respiratory illness was often associated with SIDS, and therefore the reference to respiratory disease was a wise precaution to prevent SIDS and whooping cough vaccination being associated.” Next: “Professor Miller stressed the need to maintain public confidence in the vaccine and said there was a need to prevent children with epilepsy being vaccinated in order to avoid an apparent association between vaccination and fits.” In addition: “The Chairman asked members to consider “History of seizures, convulsions, or cerebral irritation in the neonatal period”. Professor Hull said that this contra-indication would include children with disguised brain damage; this was good for the reputation of the vaccine in that it prevented an apparent association between vaccination and the discovery of brain damage.” It is somewhat perplexing why in discussing contraindication to whooping cough vaccination, the Working Group members entrusted with an “extremely important” task to reach a prompt agreement on this issue, appeared to have been more concerned about the reputation of the whooping cough vaccine, rather than the risk/benefit balance of whooping cough vaccination in children who were potentially more at risk of vaccine associated-adverse outcomes, especially since: “It was agreed that the risk/benefit balance in this group of children was not known.” Nonetheless, Dr Griffiths in referring to a paper from the US, in which children with a history of convulsions were immunised against whooping cough and then followed up noted that: “...this data did show a slightly increased risk of convulsions following vaccination in children with a previous history of convulsions.” In the ensuing discussion, members also considered whether a family history of epilepsy or other diseases of the central nervous system should be regarded as a contraindication to whooping cough vaccination and: “There was general agreement that including other diseases of the central nervous system was unnecessarily restrictive, and that this particular contra-indication should be deleted.” Whether such contraindications were indeed “unnecessarily restrictive” and whether the need to rush an agreement on this issue was justified in the light of the data available at that time, remains questionable following the observations made by Professor Gilliatt at the subsequent meeting held on 3rd November 1981 (http://www.dh.gov.uk/ab/ DH_095169): (5.d. Comments on Professor Stewart’s letter) “In both the Meade and Dudgeon studies there were examples of children who had a fit soon after vaccination which was followed by a fit at a later time and then followed by cessation of development. It was very difficult to assess this as a random event...The Chairman concluded that much was not known about the natural history of brain damage in the young.” On 30th January 1986 at the Joint Working Party of the British Paediatric Association (BPA) and the JCVI Liaison group meeting (http://www.dh.gov.uk/ab/JCVI/DH_120115), concerns BSEM March 2011 The Health Hazards of Disease Prevention 13 were expressed over the low rates of whooping cough vaccination due to contraindications which may have exempted children who had a family history of seizures. In discussing cases in whom whooping cough vaccination is not absolutely contraindicated but who require special consideration as to its advisability (item 4.8): “Professor Gillliatt said that there had been a paper published recently in America, History of convulsions and the use of pertussis vaccine. Harrison C Stetler et al. Journal of Pediatrics 1985; vol 107; pages 175-179 which indicated that there was a quite high incidence of a family history of convulsions among the first degree relatives of children who had febrile convulsions. Members observed that changing this recommendation might decrease the number of children available for vaccination against whooping cough.” By November 1986, the JCVI had a quite remarkable solution to deal with the “problem” of reduced uptake of the pertussis vaccine: the suggestion was to alter the advice on contraindication criteria. According to the transcript of the 7th November 1986 JCVI meeting (section 3.5.2a; http:// www.dh.gov.uk/ab/DH_095169), the groups of children in whom the advisability of Whooping Cough vaccination required special consideration included: i) Children with a documented history of cerebral damage in the neonatal period. ii) Children with a personal history of convulsions. iii) Children whose parents or siblings have a history of idiopathic epilepsy. iv) Children with developmental delay thought to be due to a neurological defect. v) Children with neurological disease. It is further noted in the same transcript that: “There was considerable discussion on 3.5.2(a)” the details of which had not been given but: “it was finally agreed that for (iii), it should be stressed that the risk was very slight and that (iv) and (v) should be combined under “children with neurological conditions which are stable” and “not a contraindication”, ie in 3.5.4.” [their emphasis added-underlined] Based on no apparent scientific evidence the JCVI claimed that neurodevelopmental delays or neurological disorders were in fact stable conditions and as such, unlikely to be exacerbated by vaccinations. It would appear that the sole purpose of this potentially misleading claim was to reassure parents, who otherwise might have been deterred from vaccinating their child against pertussis, of the safety of pertussis vaccination. The same would apply to the JCVI statement regarding the alleged “very slight” risk of adverse reactions in children with family history of idiopathic epilepsy. One has to wonder whether the notes of the “commercial in confidence” CSM/JCVI/Joint Sub- Committee ARVI meeting on 3rd October 1986, later obtained through FOI (which discussed among other “not be disclosed” items, suspected adverse reactions to DTP vaccines given alone or with O P V ; h t t p : / / w w w. d h . g o v. u k / e n / F r e e d o m O f I n f o r m a t i o n / Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306), would have had the same “reassuring” effect on parents had they been made publicly available at that time, or promoted with the same vigour as the vaccination campaigns: “During the current period [13th May 1986 to the 11th September 1986] 95 suspected adverse reactions were reported. These included: i)Death 151828. A 16 month old girl who two days after her first dose of DTP in mid-July 1985 was found to have a fever and a possible respiratory tract infection. Two days later BSEM March 2011 The Health Hazards of Disease Prevention 14 she had a major fit and was admitted to hospital where further convulsions occurred. Further fits occurred at the end of July 1985 and she died on the 1st of August probably from pneumococcal septicaemia. This patient had a family history of idiopathic epilepsy.“ This case has been reported to previous meetings of ARVI. ii)There were 8 reports of convulsions following vaccination including 165236, a patient who was in status epilepticus within hours of receiving her third dose of triple vaccine.” (7. Summary of Suspected Adverse Reactions to Vaccines, a.) It should be noted that the adverse reactions from OPV alone were no less severe and in fact more easily specifically attributed to the polio vaccine: “A six month old girl who developed recipient vaccine-associated poliomyelitis 30 days after receiving her first dose of oral polio vaccine.” (7. Summary of Suspected Adverse Reactions to Vaccines, c.) At the same meeting, the CSM/JCVI/Joint Sub-Committee ARVI discussed the results of a National Childhood Encephalopathy Study (NCES) as these were the subject of court proceedings on pertussis vaccine-related injury that were ongoing at that time: (5.1.1.) “The working party had established that the final number of cases in the NCES was 1,167. 39 cases had received triple vaccine in the week prior to the onset of their neurological illness (9 with infantile spasms, 18 with convulsions, and 12 with encephalopathies). These vaccine-associated cases included 5 patients (4 with convulsions and 1 with infantile spasms) who had a history of neurological events before immunisation which indicates possible prior abnormality.” Again, one has to wonder whether these five patients also fitted in the JCVI’s criteria of “stable” neurological conditions. The apparently lenient attitude with regards to vaccine safety on behalf of the JCVI is perplexing, particularly in light of their admission which followed the brief discussion about the significance of the NCES findings the CSM/JCVI/Joint Sub-Committee ARVI: (5.1.3.c.) “From the above there is reason to believe that the increased relative risk of prolonged convulsions after DTP was a real one.” Is this supposed to be a reassuring statement for all those children with prior family history of epilepsy or those suffering from “stable” neurological disorders, who as a result of the JCVI’s decision to shrink the contraindication criteria, no longer had a choice to opt out from pertussis vaccination? In further “reassurance”, the following was noted in the transcript of the CSM/JCVI/ Joint Sub-Committee ARVI meeting on 3rd October 1986 (http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306): (5.1.5.) “Queries had been raised with regard to long-term sequelae after vaccine-associated encephalopathy...Among 12 children with encephalopathy there were 2 deaths, and 5 children with impairment of varying severity at 1 year. The relative risk for an acute vaccine-associated illness (convulsions or encephalopathy) was 3.3, and was similar irrespective of degree of impairment.” Thus, according to the JCVI’s own admission, not only was the risk of DTP-associated neurological complications a real one, it also appeared to be a relatively high risk. A somewhat lenient approach to contraindication criteria was also used with vaccines other than DTP in order to boost vaccination rates. (12. BPA/JCVI Working Group) BSEM March 2011 The Health Hazards of Disease Prevention 15 “In the matter of alleged egg allergy and measles vaccine, it was noted that although it was possible to amend the advice contained in the Memorandum ‘Immunisation against Infectious Disease’, it was also desirable to encourage manufacturers to change the advice in their data sheets.” (Meeting on 25 April 1986; http://www.dh.gov.uk/ab/DH_095169) In other words, the JCVI appeared to be rather unwilling to change their own advice in the Memorandum and instead suggested that manufacturers should be “encouraged” to do so. The following Section (3) indicates that the JCVI elaborated a very simple solution for boosting vaccine uptake in face of impediments posed by contraindication criteria: restrict the contraindication criteria, rewrite information in the Memorandum and ask the pharmaceutical companies to change their data sheets as to “avoid confusion” and possible legal action. 3) On multiple occasions requested from vaccine manufacturers to make specific amendments to their data sheets, when these were in conflict with the JCVI’s official advice on immunisations. That boosting vaccine uptake appeared to be the major force driving the JCVI’s decision process, can be inferred from their request to the manufacturer of the MMR vaccine Merieux to modify the data sheet information related to contraindication to adverse effects, at the 1st May 1987 meeting (http://www.dh.gov.uk/ab/DH_095169). Apparently, it was not sufficient to amend existing information on immunisation in their Memorandum to Infectious Diseases, it was also necessary to make that information concordant with the advices stated on manufacturer’s data sheets: (7.2 Report of the meeting of the Working Party held on 25 February 1987) “It was also noted that the data sheet for the Merieux MMR vaccine contra-indicated the use of the vaccine in children with a past or family history of convulsions. Medicines Division would be asked to approach Merieux to ascertain whether they would be willing to adopt appropriate modification to this data sheet.” At a later meeting on 23rd October 1987 (http://www.dh.gov.uk/ab/DH_095169), the JCVI also pressed for a change in the pertussis vaccine licensing details from the manufacturers, in spite of a pertussis vaccine-suspected injury litigation that was ongoing at that time. The Chairman of the JCVI approached the Association of British Pharmaceutical Industries to resolve this issue. The notes on this meeting state that: (15.2) “The meeting considered revised contra-indications to pertussis vaccine in parallel with those at present published; ARVI was aware of the potential difficulties in relaxing the contra-indications to pertussis vaccine and suggested that the papers be sent to the CSM and also to the manufacturers. The latter, in a written response, replied that it was not possible at present to change the product license details whilst litigation was in progress.” The “potential difficulties” that ARVI was concerned about were related to the ongoing pertussis litigation (this becomes more evident from the notes of a confidential meeting on 6th July 1987 cited further below). Unable to get the manufacturers to comply with their request, the JCVI turned to the Solicitors Branch in the Department of Health and Social Security (DHSS), to seek advice over: “...the difficulty of reconciling revised contra-indications to pertussis vaccine with advice issued by the manufacturers.”(18. Meeting of the Chairman of the JCVI and the Association of British Pharmaceutical Industries; JCVI meeting 23rd October 1987; http:// www.dh.gov.uk/ab/DH_095169) The advice from the Solicitors was that: BSEM March 2011 The Health Hazards of Disease Prevention 16 “...such a discrepancy was not a problem for the JCVI whose function was to give advice to medical profession in the light of the best available knowledge.”(19. Memorandum “Immunisation Against Infectious Disease; JCVI meeting 23rd October 1987; http:// www.dh.gov.uk/ab/DH_095169) Notably, the “difficulty of reconciling revised contra-indications to pertussis vaccine” had been previously discussed by the CSM/JCVI/Joint Sub-Committee ARVI, on 6th July 1987, in yet another meeting that was noted as “commercial” and “in confidence”. According to this transcript which has been obtained through FOI (http://www.dh.gov.uk/ en/FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306): “The Chairman reminded members that the proceedings, papers, and information before them were confidential and should not be disclosed.” The same transcript also reveals the reason why the JCVI made great efforts to obtain the manufacturers’ compliance to their request to amend the data sheets on the pertussis vaccine and why, failing that, they sought help from the DHSS Solicitors. It was not necessarily because their policy was ethically and scientifically sound, but possibly because they were anxious about potential legal repercussions. (Note that the names of the participants have been redacted from the transcript prior to its release under the FOI section at the JCVI website, so that the comments made are unattributable to particular members): (6.4 JCVI’s revised contra-indications to pertussis vaccine) “The Chairman stated that JCVI had produced more permissive guidance on contraindications to pertussis immunisation and that the revised contra-indications, shortly to appear in the next version of the Memorandum ‘Immunisation against Infectious Disease’ would not conform with the manufacturers data sheet. This might lead to confusion for general practitioners and other vaccinators and there might be legal problems. ________ commented that both the JCVI and the JCVI/BPA Working Party had tried to improve guidelines to give specific contra-indications but an attempt should be made to reconcile these with data sheets and product licenses. Delay in the new Memorandum might be worthwhile in order to obtain manufacturers agreement to changes in data sheets and also to give the BNF [British National Formulary] the opportunity to change its advice. _________ agreed with _______ and welcomed the clearer advice from JCVI on pertussis contraindications which he endorsed.” The discussion that followed seems to indicate that ARVI was indeed nervous about potential legal implications, as apparently, they tried to evade having any responsibility on this matter: “________ commented there was no need for JCVI advice to change but there should be awareness of the implications of change. _________ suggested a meeting with the manufacturers to discuss the changes in an attempt to seek common ground. __________ commented that it was not ARVI’s responsibility to dismantle other groups instructions. ________ noted that ARVI had responsibilities to both JCVI and CSM and asked that pertussis section of the revised Memorandum should be submitted to the CSM for endorsement and then to the Licensing Authority to discuss with manufacturers so that the data sheets and the Memorandum would be compatible. __________ suggested that advice should be followed and that members should submit their comments in writing to the Chairman. _________ hoped that there could be informal discussion with the manufacturers of areas of agreement or debate and __________ noted that the new pertussis guidelines would be produced at a time of a continuing pertussis litigation._________ asked if there was likely to be a change in pertussis vaccine in the near future as this might promote difficulties if the contra-indications were also to change._______ agreed that the pertussis section should be sent to CSM....” BSEM March 2011 The Health Hazards of Disease Prevention 17 The following “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting held on 2nd October 1987 (http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306), reveals how the CSM dealt with the burden of responsibility over the revised pertussis contraindications issue: (6.4 JCVI’s Revised Contra-indications to Pertussis Vaccine) “_________reported that the discrepancy between JCVI recommendations and manufacturers product licenses had been discussed at CSM who had upheld JCVI’s right to issue advice to the profession.” “_________reported that a meeting was shortly to be held with the Pharmaceutical Industry to find common ground on issues such as this. _________stated that DHSS Solicitors views of this discrepancy had been sought and had been advised that there was no obligation on JCVI’s views to conform with the manufacturers product licenses when those views represented the advice of expert medical opinion.” We see here that unlike the manufacturers, the CSM had endorsed the proposed revisions of contraindications to pertussis vaccine and their view was held by the DHSS Solicitors as superior to that of the vaccine Licensing Authority. This indeed is the case, since in the UK licensing process when applying for a licence, the pharmaceutical company will first submit a file to the Medicines and Healthcare products Regulatory Agency (MHRA) and the CSM within the MHRA will then review the application and produce an independent assessment. Following that, the CSM will issue a recommendation to the Licensing Authority that a licence is granted (http://www.ukmi.nhs.uk/ Med_info/licensing_process.pdf). The CSM’s competence as a body of medical experts and the reliability of their advice can be assessed from the notes of the preceding “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting, held on 6th July 1987 (http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306): (6.1 Whooping cough) “In conjunction with Tabled Paper 1 and an unnumbered agenda paper the Secretary summarised the present position regarding the Loveday litigation for the benefit of new members. He explained that in February the CSM had called for ARVI’s advice about updating the statement made in the 1981 report on Whooping Cough (HMSO) about a possible link between DTP immunisation and serious neurological illness. It had been hoped that by this means ‘discovery’ of all the relevant JCVI, CSM and ARVI documentation on whooping cough vaccine could be avoided. However, by the time ___________ could report a revised statement to CSM (see minutes of February 1987 meeting) it was already clear that nothing could be done to avoid ‘discovery’. Subsequently, the Chairman of CSM asked ARVI to keep a watching brief on the situation, and to let the Main Committee know if at any time it was thought possible to modify further the statement.” The contents of the controversial statement that the CSM appeared to be eager to modify, in order to avoid potential legal consequences, have been disclosed to the JCVI/Joint Sub- Committee ARVI members on “commercial in confidence” meeting on 6th February 1987 obtained through FOI (http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306): The notes of that meeting in the section “7.1 Whooping cough vaccine –CSM advice” read: “No scientifically unassailable link has been established between DTP immunisation and serious neurological illness but we have come to conclusion, on the basis of all present evidence, that there is a prima facie case that such a link may exist. We would also agree that the evidence suggests that the vaccine causes convulsions in some children.” BSEM March 2011 The Health Hazards of Disease Prevention 18 Thus, the “best available knowledge” on which the CSM “upheld the JCVI’s right to issue advice to the profession on restricting contraindication to pertussis vaccination can be summarized as follows: Both the CSM and the JCVI/Joint Sub-Committee ARVI seemed to have been fully aware of the fact that the pertussis vaccine could cause convulsions and adverse serious neurological outcomes in a sub-set of children. Apparently, the CSM and the JCVI/Joint Sub-Committee ARVI have then attempted to avoid “‘discovery’ of all the relevant JCVI, CSM and ARVI documentation”. Does this suggest that the top UK authorities responsible for sound vaccination policies were not as much concerned about putting certain children at risk of serious vaccine-induced neurological harm, as they were of legal repercussions that might have followed in the event that any of the “relevant” documents were to reach the public? Finally, rather than being in line with public health interests, those responsible for the safety of medicines and sound vaccination practices appeared to have been more aligned with the interests of vaccine manufacturers. This is implied by the following discussion from the transcript of the “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting held on 6th June 1986 (http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306), at which members of the US Centers for Disease Control (CDC) were also present. In discussing the significance of the NCES report on pertussis vaccine injury it was noted: (6. Litigation and pertussis vaccination) “6.1_______ referred to the June issue of the American Journal of Diseases of Childhood. He said that between 18 and 22 million doses of DPT were manufactured annually in the United States prior to the difficulties concerning whooping cough vaccine and litigation... Since 1985, the price of the vaccine has risen from 40 cents per dose to $ [unreadable] per dose in 1986 and it is expected to rise to $11 per dose. Litigation claims per year have risen from virtually nil in 1978/79 to over 219 in 1985, claiming [unreadable] billion US dollars, and litigation suits follow a similar pattern. The total amount claimed has likewise increased greatly.” “6.2_______said that out of court settlements had not been included in these figures. It was difficult to protect manufacturers against such heavy compensation claims. The situation had been aggravated by an organisation called ‘Dissatisfied Parents Together’. The Hawkins Congressional Commission suggested that claimants might go into a system with a Panel and if accepted would be given an award of $1 million or alternatively accept court settlement. There was also a Bill before the American Government which suggested that punitive damage be done away with and that damages for pain and suffering only be awarded.” Over the subsequent years the trend of restricting contraindications criteria by the JCVI in order to increase vaccination rates continued. On 20th October 1988 (http:// www.dh.gov.uk/ab/DH_095169): (6.2 Health Education Authority (HEA) publications on MMR) “Members pointed out that the Data Sheet for MMR vaccine suggested that it should not be given before the age of 15 months and also that the vaccine should be given subcutaneously (and not by deep subcutaneous or intramuscular injection as suggested in the Memorandum). The difficulties of changing the Data Sheets to agree with the advice in the Memorandum “Immunisation Against Infectious Disease” were discussed.” What also continued is the JCVI’s confidential meetings with vaccine manufacturers, which appeared to be focused on vaccine policy and business rather than child health and safety. In reference to the meeting of the Chairman of the JCVI and the Association of British Pharmaceutical Industries, the transcript of the JCVI meeting on 23rd October 1987 (http:// www.dh.gov.uk/ab/DH_095169) states: “Also discussed was the availability of scarce vaccines and the introduction of new vaccines into more regular use. The question of financial support for training members of the health BSEM March 2011 The Health Hazards of Disease Prevention 19 service in immunisation was also discussed.” (18. Meeting of the Chairman of the JCVI and the Association of British Pharmaceutical Industries) It ought to be asked why the Chairman of the JCVI deemed as appropriate for members of health services to be financially supported by the vaccine manufacturers. On further relations between the JCVI and vaccine manufacturers, the transcript of the JCVI meeting on 4th May 1990 (http://www.dh.gov.uk/ab/DH_095169) reveals that: (2. iv.) “The Chairman said that Departmental officials had recently met vaccine manufacturers who were keen to be informed, in confidence, of the outcome of JCVI discussions which might affect their own plans. Agreement was sought from the committee on the appropriateness of a summary of such discussions, cleared by the Chairman, being provided to manufacturers. The Committee agreed to this. In connection with this Professor Hull brought to the Committee’s attention a recent letter he had received from a GP, the contents of which indicated, and the Chairman and committee agreed, a continuing communication problem on the relationship between JCVI advice and manufacturer’s data sheets. Dr Salisbury said he was aware of this particular correspondence.” Incidentally, this is the same Professor Hull who, 8 years later, on 6th July 1998, was prompted to write to Professor Zuckerman at the Royal Free Hospital in London, to express his concern about the work of Dr Andrew Wakefield, who investigated the histories of 12 children with regressive autism and gastrointestinal symptoms that appeared to be linked to the MMR vaccine (http://www.circare.org/autism/hull_zuckerman_19980706.pdf). In summary, by making persistent efforts in restricting vaccination contraindication criteria, so that more children could be vaccinated, the JCVI appeared to have prioritized vaccination policy over vaccine safety. In doing so, both the JCVI and the CSM (which actively supported the JCVI’s amendments) may have shown a disregard for the safety of children. Furthermore, together with ARVI and the CSM, the JCVI attempted to avoid “’discovery’ of all the relevant documentation” and thus perhaps evade potential legal repercussions. By seemingly siding with vaccine manufacturers rather than public health interests, the CSM/JCVI appear to have signally failed their fiduciary duty to protect individuals from vaccines of questionable safety and thus possibly shown incompetence in their role in the public health service. 4) Persistently relied on methodologically dubious studies, while dismissing independent research, to promote vaccine policies. Over the years, the JCVI has consistently promoted the MMR vaccine as safe, based on studies that have proven to be either irrelevant, inconclusive, or methodologically questionable. There was also a marked tendency by the JCVI to rely on epidemiological work to support the MMR policy. For example, in a discussion of a population-based study by Fombonne and Chakrabarti , which found no link between the MMR vaccine and autism, at the JCVI meeting on 2nd November 2001 (http://www.dh.gov.uk/ab/JCVI/DH_095044): (7.1) “The Committee agreed that this data from Dr Fombonne was persuasive and indicated that the frequency of regressive autism appeared not to have increased.” The problem with epidemiological studies is that they only test for “association” and not “causation”, thus providing unreliable estimates of true risks. Regarding the alleged safety of the MMR vaccine, the most comprehensive independent evaluation done on this subject, by the Cochrane Review (October 2005, http://www2.cochrane.org/reviews/en/ab004407.html), is hardly reassuring. BSEM March 2011 The Health Hazards of Disease Prevention 20 Although the Cochrane Review found no significant evidence of an involvement of the MMR with either autism or Crohn's disease, none of the 31 studies included in the review met the Cochrane Collaboration's methodological criteria. In fact, one of the major conclusions from the Cochrane's 2005 MMR review was: "The design and reporting of safety outcomes in MMR vaccine studies, both pre- and postmarketing, are largely inadequate." More specifically, referring to the 2001 Fombonne and Chakrabarti study which the JCVI regarded as “persuasive” in disproving the link between the MMR vaccine and autism, the Cochrane review made the following remark: "The number and possible impact of biases in this study was so high that interpretation of the results is impossible." While historically, the JCVI tended to be quick in accepting those studies which dismissed safety concerns over the MMR or other vaccines, it was inert in accepting those which indicated that concerns were warranted. At the JCVI meeting on 1st November 2002 (http://www.dh.gov.uk/ab/ JCVI/DH_095044), the members discussed recent scientific research on the MMR where: “The Committee was provided with recent research published on the safety of MMR, in particular the link with inflammatory bowel disease and autism. The following papers had undergone review by experts: 1. "Neuro-immunopathogenesis in Autism" V Singh. New Foundation of Biology 2001, 447-458. 2. Abnormal measles-mumps-rubella antibodies and CNS auto-immunity in children with autism. V Singh et al. Biomedical Science 2002; 9; 359-364 3. Small intestinal enteropathy with epithelial IgG and complement deposition in children with regressive autism. Torrente et al. Molecular Psychiatry 2002; 7(4);375-382 4. Development of an "allelic discrimination" type assay to differentiate between the strain origin of measles virus detected in intestinal tissue of children with ileocolonic lymphonodular hyperplasia and concomitant development disorder. O Sheils et al. Abstract presented at the Pathological Society of Great Britain and Ireland in July 2002. 5. Review article: the concept of entero-colonic encephalopathy, autism and opioid receptor ligand. A Wakefield et al. Alimentary Pharmacology and Theraputics 2002; 16: 663-674.” (10.2 Recent scientific research) The conclusions were: “that this new evidence did not alter the CSM view: there was no evidence to support a causal link between MMR vaccine and autism and bowel disease. JCVI found the papers helpful and expressed its strong support for the conclusion reached by the CSM.” As it will be evident from Section 8), the JCVI attitude towards vaccine safety, particularly the MMR, has not changed and to this day, the Committee still regards it as safe. On the other hand, independent research is accumulating to suggest otherwise. Only a year after the 1st November 2002 JCVI meeting, Singh and Jensen found more evidence to support an aetiological role of the measles virus component of the MMR vaccine in autism . Using enzyme-linked immunosorbent assay, Singh and Jensen found that children with autism, unlike their siblings or normal children, had significantly elevated levels of measles antibodies in their sera. Antibodies against rubella and mumps did not significantly differ between these groups of children, however, immunoblotting screen against measles vaccine virus (source Merck&Co) showed that 43 out of 52 (83%) autistic children, but none of the 30 normal children or 15 siblings of autistic children, had antibodies against the measles vaccine virus. Since none of the children in Singh and Jensen study had any prior history of measles rash or wild type measles infection, but they all have had their immunisation with the MMR, the authors concluded : BSEM March 2011 The Health Hazards of Disease Prevention 21 “This vaccine in a small population of genetically predisposed children may perhaps manifest an atypical measles infection that does not yield a clinical rash but produces neurologic symptoms similar to those seen in children with autism.” and “Although more research is necessary to uncover the etiology of autism, the hyperimmune response to measles virus might indicate virus reactivation that triggers a misguided humoral immune response in children with the disorder.” Finally, far from being “discredited” and “flawed” as suggested in latest editorials published in the BMJ , the “Wakefield’s hypothesis”, which indicates that there is “a pattern of colitis and ileallymphoidnodular hyperplasia in children with developmental disorders” , is now supported by more independent research [8-12]. Notably, several respectable publications suggest that the principal findings of the Wakefield’s 1998 Lancet study should not be discarded nor ignored. For example: Quigley and Hurley : "Wakefield et al. are to be congratulated on opening yet another window onto the everbroadening spectrum of gut/brain interactions. Their findings raise many challenging questions that should provoke further much-needed research in this area, research that may provide true grounds for optimism for affected patients and their families." Most recently, at the meeting on 2nd February 2011 (http://www.dh.gov.uk/ab/JCVI/DH_123529), the JCVI dismissed the relevance of a paper by world-renowned autoimmunologists Professor Yehuda Shoenfeld and Nancy Agmon-Levin , which raised serious concerns about the role of vaccine adjuvants in vaccine-related autoimmune conditions. (XII. Papers for information and any other business, 61.) “The committee discussed a review paper by Shoenfeld and Agmon-Levin (2010) 3 on autoimmune/inflammatory syndrome induced by adjuvants, in particular on the role of adjuvants in the pathogenesis of four conditions: siliconosis, the Gulf war syndrome (GWS), the macrophagic myofasciitis syndrome (MMF) and post-vaccination phenomena. The committee considered that the paper did not provide convincing data on the role of adjuvants in these four ‘enigmatic’ medical conditions and that the review did not raise safety concerns about the use of adjuvants.” 5) Persistently and categorically downplayed safety concerns while overinflating vaccine benefits. The sharp increase in litigation claims over pertussis vaccine injury between 1978/79-1985, presented an additional challenge for the CSM/JCVI/Joint Sub-Committee ARVI, as increased efforts were now needed to reassure the public in the safety of the pertussis vaccine. In the transcript of the “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting held on 7th February 1986 (http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306), ARVI made the following comments on a confidential paper: (Item 5.1 ARVI’s comments on ________ paper “Whooping cough disease, vaccination, vaccine damage”) “________ deprecated the use of the term ‘brain damage’ which the public might consider as a permanent entity. The public may not also understand the significance of febrile convulsions.” BSEM March 2011 The Health Hazards of Disease Prevention 22 Are we to assume that ARVI had not been aware of a certain controversial statement made by the CSM in the 1981 in a report on Whooping Cough about a possible link between DTP immunisation and serious neurological illness?: “No scientifically unassailable link has been established between DTP immunisation and serious neurological illness but we have come to conclusion, on the basis of all present evidence, that there is a prima facie case that such a link may exist.” (JCVI/Joint Sub- Committee ARVI “commercial in confidence” meeting on 6th February 1987, section “7.1 Whooping cough vaccine –CSM advice”; http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306) Perhaps the reason why ARVI “deprecated the use of brain damage” is because of their firm belief that vaccines could not be associated with such events. Apparently, the possibility that vaccination could cause permanent brain damage must have been considered as an outrageous assertion, so much so that it did not even deserve scientific scrutiny. In fact, following a discussion on a proposal for the surveillance of severe neurological disorders in infancy and their relationship to pertussis vaccine on 7th February 1986 (http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306), CSM/JCVI/Joint Sub- Committee ARVI jointly concluded that: (6.5.1) “It was considered unreasonable to ask paediatricians to report for a period of six years.” Under the same agenda, the CSM/JCVI/Joint Sub-Committee ARVI also decided that: (6.5.1) “No attempt would be made to study serious neurological disease arising from pertussis and other infectious diseases.” Obviously without such a standard, it would have been quite impossible to assess whether vaccination against pertussis caused more severe brain damage than natural pertussis infection. If concerns about pertussis vaccination were indeed unsupported and only a product of an inexpert “perception of the public” as ARVI’s statements would led us to believe, then surely such a study would have just reinforced the notion that vaccines are safe. However, it appears that according to the CSM/JCVI/Joint Sub-Committee ARVI’s problem-solving rationale, instead of encouraging further research, it seemed more acceptable to downplay safety concerns over possible vaccine-injury, which then justified their decision to take no further investigation into the matter. Unwillingness to carry out this specific research is perplexing indeed, in light of what was noted at the 3rd November 1981 meeting (http://www.dh.gov.uk/ab/DH_095169) in section 5 on Whooping Cough: (5.d. Comments on Professor Stewart’s letter) “Professor Gilliatt observed that in the Meade Panel Study one-third of children with brain damage were not admitted to hospital. In both the Meade and Dudgeon studies there were examples of children who had a fit soon after vaccination which was followed by a fit at a later time and then followed by cessation of development. It was very difficult to assess this as a random event...The Chairman concluded that much was not known about the natural history of brain damage in the young.” Are we meant to believe that “cessation of development” following episodes of vaccine-associated fits does not fit into the category of “permanent entity” and/or “brain damage”? As for the public’s alleged misunderstanding on the significance of febrile convulsions, the transcript notes of the “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting held on 6th June 1986 (http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306) are particularly enlightening: In discussing the significance of the NCES report on pertussis vaccine injury: (5.2 Encephalopathy) BSEM March 2011 The Health Hazards of Disease Prevention 23 “The report used the NCES estimation of relative risk of 3:1, it was estimated that one third of such cases have permanent handicap one year from their onset (as derived from the NCES).” (5.3 Complex Febrile Convulsions) “These were defined as being of more than 10 minutes in duration, or repetitive over 24 hours...Vaccine could cause such seizures and it was believed that 10 per cent of such complex seizures could result in permanent handicap...” Perhaps the public would have been better acquainted with the significance of febrile convulsions and the fact that pertussis vaccine could cause them, had not: “The Chairman reminded members that the proceedings, papers and information before them [were] confidential and should not be disclosed.” Paradoxically, at the prior meeting on 7th February 1986 (http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306), at which ARVI stated it “deprecated the use of the term brain damage”, the CSM/ JCVI/Joint Sub-Committee ARVI acknowledged: (6.5.1) “that the NCES may have missed cases of severe neurological disease which progressed to handicap among children who were not admitted to hospital.” Going back to the meeting that followed, on 6th June 1986 (http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306): (5.7) “In the general discussion which followed, some members of the Committee felt that the report [referring to the American Medical Association (AMA) panel report on Pertussis Vaccine Injury, published in JAMA 1985; vol 254, pages 3083-3084] not only accepted the fact that vaccine damage was a real phenomenon but implied (by the way it was written) that it was commoner than was believed to be the case in the UK.” Notably, according to the notes of the “commercial in confidence” CSM/JCVI/Joint Sub- Committee ARVI meeting on 3rd October 1986 (http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306), the AMA panel report had been prepared: (5.2) “...with the particular intention of providing information for legislators as to what type of vaccine-associated event might require compensation, if Federal compensation for presumed vaccine injury were to be introduced.” Perhaps it is because of this that the CSM/JCVI/Joint Sub-Committee ARVI: (5.2) “...agreed that the document contained a number of assertions which could not be accepted.” One has to wonder whether such assertions unacceptable to the CSM/JCVI/Joint Sub- Committee ARVI include: “...the fact that vaccine damage was real a phenomenon” and “commoner than was believed to be the case in the UK.” (CSM/JCVI/Joint Sub-Committee ARVI meeting on 6th June 1986; item 5.7; http://www.dh.gov.uk/en/FreedomOfInformation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306) BSEM March 2011 The Health Hazards of Disease Prevention 24 Other than perceiving health hazards associated with certain vaccines as a danger to overall routine immunisations, the JCVI felt that certain health professionals were also negatively affecting the vaccination policy by exercising more caution with regards to contraindication criteria than the JCVI deemed appropriate (for a remainder of the JCVI’s position with regards to contraindication criteria refer back to Sections 2) and 3)). In a Summary Report on an investigation of failure to reach a measles immunisation uptake in the Maidstone Health Authority, at the Joint Working Party of the BPA and the JCVI Liaison group meeting on 30th September 1986 (FOI release, 86/3rd meeting; http:// w w w . d h . g o v . u k / e n / F r e e d o m O f I n f o r m a t i o n / Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4140335), the member whose name was erased from the transcript commented that: (7.) “...the paper described a position which was still bedevilled by false contra-indications to measles vaccination.” Apparently, “________ commented that often parents wanted the vaccine given but were dissuaded by health service staff. ________ stressed the need for training of health professionals and the Chairman considered that the ‘responsible person’ in each district (quoted in previous circulars) should organise such a training.” (7. Measles vaccination: Summary Report on an investigation of failure to reach a measles immunisation uptake in the Maidstone Health Authority) In a later meeting (JCVI 7th November 1986; http://www.dh.gov.uk/ab/DH_095169): (9. BPA/JCVI Working Group) “Members agreed that the most disturbing feature was that a minority of health professionals could exert a disproportionally bad effect on a campaign.” What the JCVI’s perception of a “responsible person” might be, is perhaps best understood in the light of their bewildering leniency towards vaccine safety and a seeming tendency to align with the manufacturers’ interests more than those of public health. By 18th November, the JCVI had an elaborate strategy to improve measles vaccine uptake (as documented in the transcript of the JCVI meeting on 1st May 1987; http:// www.dh.gov.uk/ab/DH_095169), which included: (discussion about a PHLS meeting on 18th November on the uptake of measles vaccine) “GP clinics where immunisations were given should be more attractive and use every opportunity of attendance at clinics to offer immunisation; this is especially important for deprived families.” It was also recommended that: “Regional and District Health Authorities (DHAs) should be accountable for their vaccination performance.” Since: “All the members agreed that accountability with regard to immunisation was most important. The Chairman is summing up said that immunisation was a most important NHS Policy and that recommendation before them, after editing, should be put to the NHS Management Board and then promulgated to the NHS with a separate copy to the nominated persons in the districts.” That “immunisation was a most important NHS Policy” is also implied in a discussion on whooping cough at the JCVI meeting on 3rd November 1981 (http://www.dh.gov.uk/ab/ DH_095169): BSEM March 2011 The Health Hazards of Disease Prevention 25 (5.d. Comments on Professor Stewart’s letter) “The meeting then considered Professor Stewart’s paper on deaths from whooping cough in Great Britain (JCVI(81)12). Dr Williams, referring to page 5 of the paper, said that deaths from whooping cough tended to be under-notified...On the other hand, at times of outbreaks of whooping cough the disease tended to be over-notified; this had the effect of lowering fatality ratio.” In the ensuing discussion: “The Chairman concluded that it would probably not be wise for the Committee to make a formal reply to this paper. (Members also thought that controversial replies to correspondence to the medical journals might not add support to the whooping cough vaccination campaign.)” In the following years, the members of ARVI continued to “express anxieties” over eroding confidence of the public in pertussis and other vaccines. In a Joint Sub-Committee ARVI meeting on 8th March 1988, the members recommended that a monitoring system for vaccine reactions should be set up, which would cope with any vaccine related “adverse publicity” (item 7, Adverse Reactions Surveillance; http://www.dh.gov.uk/en/ FreedomOfInformation/Freedomofinformationpublicationschemefeedback/FOIreleases/ DH_4135306; note that this meeting was incorrectly noted as March 1998 rather than March 1988). While the public appeared to have lost the confidence in the safety of the pertussis vaccine by the mid 80s, in 1989, the JCVI was still debating on whether or not the pertussis vaccine caused permanent brain damage. Referring to the NCES report it was generally accepted by the JCVI that if the vaccine led to severe neurological outcomes, it did so very rarely (JCVI meeting on 3rd November 1989; http://www.dh.gov.uk/ab/DH_095169). Finally, it was agreed that the statistical data of attributable risk should be removed from the Memorandum since, according to Dr Salisbury: “If the public was given a risk ratio — any ratio — they would still see it as a scientifically proven risk. It was therefore preferable not to use insecure figures if possible but to stress the benefits from vaccination.” (12.1 Whooping cough – article by Dr A H Griffith in Vaccine etc JCVI (89)32) Regarding the alleged overall “benefits from vaccination”, it is worth mentioning that in a discussion about Diphtheria outbreaks in immunised populations on 22nd April 1988 (http:// www.dh.gov.uk/ab/DH_095169), the JCVI acknowledged that these do in fact: (16.1) “occur in well-immunised populations...” In addition, the decision to include mumps in the routine vaccination schedule with the introduction of the MMR in 1988 goes against JCVI’s own past advice, as evidenced by a discussion about the usefulness of the mumps vaccine in the JCVI meeting on 11th December 1974 (http:// www.dh.gov.uk/ab/JCVI/DH_095052): (10.) “The Committee agreed that there was no need to introduce routine vaccination against mumps.” because “complications from the disease were rare.” Granted, opinions can change with time as new scientific evidence becomes available. Even so, the arguments are against routine mumps vaccination. Mumps in adults but not in children can cause mumps orchitis, a serious condition which may result in male sterility. Mumps outbreaks in older BSEM March 2011 The Health Hazards of Disease Prevention 26 individuals increased in frequency since the introduction of the MMR into the routine schedule, most likely because of the poor effectiveness of the mumps component of the vaccine. In a comprehensive assessment on mumps orchitis in the post-vaccine era, which included epidemiologic, clinical, therapeutic, and follow-up studies and outcomes of 609 patients, Ternavasio-de la Vega et al.  reported: “Mumps orchitis is the most common complication of mumps infection in young postpubertal males. Testicular compromise is characterized by an abrupt onset of unilateral or bilateral marked scrotal swelling and pain, accompanied by constitutional symptoms and fever. Immunization programs against mumps have reduced the number of reported cases and influenced their age distribution. Since the introduction of mumps vaccine in 1967 (the year the first mumps vaccine was licensed in the United States), a shift in the age of peak incidence of mumps from children aged 5-9 years, in the prevaccine era, to children and young adults aged 10-24 years has been observed. Serious complications have appeared as a consequence because of the higher rate of sequelae among the older age-group. The principal complication of acute mumps orchitis is the atrophy of germinal epithelium with spermatogenesis arrest, which in turns leads to male sterility.” The evidence for the poor effectiveness of the mumps vaccine has recently been reported by Castilla et al. : “This study adds to the literature showing moderate effectiveness of the mumps vaccine containing the Jeryl Lynn strain, which seems to be related with early and progressive waning immunity. This effect, seen in children vaccinated with both one and two doses, makes it difficult to control the disease even when high vaccination coverage is achieved, and leaves open the possibility that outbreaks will occur when the infection is reintroduced.” “Our results indicate that this effect of waning immunity begins early, as seen in the fact that 3 or more years after the second dose of MMR vaccine, the risk of mumps was 10 times higher. This increased risk does not appear to be linear, but rather is accentuated over time.” Hence, routine mumps vaccination has shifted a childhood disease to adolescents and young adults, groups with a higher incidence of adverse long-term complications and sequelae. By contrast, the benefits of naturally acquired immunity against mumps in early childhood are life-long protection against mumps and its serious complications later in life. Curiously, at the meeting held on 17th September 1990 (http://www.dh.gov.uk/ab/JCVI/ DH_095294), the JCVI also acknowledged the consequences of shifting mumps infections to older age groups: (6.5) “It was noted that the introduction of mumps immunisation could in theory shift the age specific infection rates to the older age groups in whom the complications were greater;” However, the Committee concluded: “...nevertheless, the gains from the progressive reduction in mumps illnesses outweigh such concerns.” It would appear that in following the JCVI’s line of reasoning, one must conclude that the alleged benefit of eradicating mumps in young males where the illness is mild and “complications are rare”, outweighs the risk of male sterility. Similar to mumps, the complications from rubella early in childhood are minimal, hence it may be argued that vaccination against both rubella and mumps are of little clinical benefit to a child. Serious complications from rubella may occur in a developing foetus of a pregnant woman who has contracted rubella during her first trimester. In such cases a child may be born with congenital rubella syndrome (CRS), involving multiple congenital abnormalities. The risk of CRS can be reduced either by making sure all women have caught rubella as children or by vaccinating those BSEM March 2011 The Health Hazards of Disease Prevention 27 who have not prior to puberty. Hence, the current JCVI’s policy of vaccinating every child, male and female, against rubella does not appear to be justified. Finally, apart from “no need to introduce routine vaccination against mumps” , the decision to introduce the MMR into a routine schedule was in conflict with the JCVI’s past concerns about risks associated with simultaneous administration of multiple live vaccines. Curiously, the MMR vaccine developed by MSD was first licensed in the UK in 1972, but not marketed until 1988. An indication as to why it took 16 years to introduce it in to a schedule may be found in the same meeting which discussed the usefulness of the mumps vaccine (JCVI meeting, 11th December 1974; http:// www.dh.gov.uk/ab/JCVI/DH_095052): (11 Simultaneous administration of live vaccines (CHCS(VI)14)) “The Chairman refereed to the 3 vaccines which had been licensed for Merck Sharp and Dohme and asked for comments on the company’s claim that these could be administered simultaneously with live poliovirus vaccine. This use of the vaccine appeared to conflict with the Committee’s published advice and they had to consider (a) whether this advice should be changed and (b) if the vaccine concerned viz MMR, Biavax and Measles and Rubella virus vaccine and live MSD could be given with live poliovirus vaccine. Professor Dick and Dr Warin pointed out that an interval in the administration of live vaccines had been advocated in view of the probability of adverse reactions and because of the recent publicity surrounding adverse reactions. The Committee agreed that it would be inopportune to change the guidance that an interval of at least 3 weeks should be allowed to elapse between the administration of any 2 live vaccines whichever came first.” Perhaps unknown to most lay people as well as medical professionals is the issue of vaccine contaminants which is somewhat inherent to the vaccine production process. In this regard, one particular item discussed under the section 3.4. Ruminant and Human Materials used in Vaccine Manufacture, at the JCVI meeting on 4th May 2001 (http://www.dh.gov.uk/ab/JCVI/DH_095044), deserves special emphasis: (3.4.1) “This report was provided for information. The Committee asked by which date the vaccines already distributed would no longer include any whose production process may have involved the use of potentially BSE [Bovine spongiform encephalopathy] infected Category 1 or 2 material. The Committee was told that Category 1 material was only used at the master seed/working seed stage of the manufacture of a very few vaccines, not in routine vaccine production itself. Many vaccines are produced from master seeds which were manufactured many years ago...Master seed material often antedated the BSE epidemic in the UK, and was diluted many fold to the extent that any exposure to infected material, if ever present, would be remote.” How many people would feel comfortable with taking medicinal products derived from potentially BSE-contaminated material? As to why such vaccines continued to be used: (3.4.1) “There is reluctance to establish new master seeds for vaccines which have long history of use because such a change could possibly change the vaccine characteristics which may adversely impact safety and efficacy.” Indeed, removing sources of possible BSE contamination from vaccine manufacture would have no doubt “impacted safety”; it would have made vaccines safer. Curiously, when asked by the JCVI: (3.4.3) “...to consider whether it would be possible to put the information it had summarised on vaccine manufacturing and excipients in vaccines into the public domain; the MCA would consult their lawyers on this point.” BSEM March 2011 The Health Hazards of Disease Prevention 28 If there was no risk of contracting BSE from a vaccine, then why did the MCA have to consult their lawyers “on this point”? At the same meeting, on 4th May 2001 (http://www.dh.gov.uk/ab/JCVI/DH_095044), the Committee discussed: (4.5.1) “... suspected adverse reactions categorised as serious to DTP/Hib, polio, BCG, hepatitis A and B vaccines over the last three years. The data was based on Yellow Card reports received by the MCA.” and it showed the following: “i. DTP/Hib - the overall pattern and type of suspected reactions in 2000 were similar to previous years, with the exception of an increase in the number of respiratory reactions. Most of the increase appeared to be due to an increase in number of SIDS (5) and apnoea type reactions (14) being reported. ii. Polio - The types of suspected reactions reported in 2000 were on the whole similar to previous years. The only differences appeared to be an increase in the number of cardiovascular, eye and respiratory reactions reported. iii. BCG - Overall the types of suspected reactions reported were similar with the exception of an increase in number of cardiovascular reactions in 1999 and musculo-skeletal reactions in 2000. iv. Hepatitis B - The types of suspected reactions reported on the whole had been similar, with a notable decrease in the number of serious cardiovascular, eye, immune system, musculo-skeletal and neurological reactions being reported. v. Hepatitis A - The types of suspected reactions being reported were on the whole fairly similar. However, there were three notable differences: a significant increase in the number of cardiovascular and musculo-skeletal reactions reported in 2000, and a significant increase in the number of immune system disorder reactions reported in 1999. All these type of reactions were recognised side effects of this vaccine.” (4.5.2) “Overall, there were no new safety issues identified.” Perhaps these were not new issues, just old persisting ones. Nonetheless, in all but one case (Hepatitis B), the number of serious adverse reactions appeared to have increased and in some cases this was not only significant but also a “recognised side effect of this vaccine” (Hepatitis A). In spite of this: (4.5.2) “The Committee was not persuaded given all the inherent uncertainties of spontaneous reporting that there were significant problems developing.” If anything, the Committee previously appeared to have acknowledged that there were problems with underreporting of adverse reactions to vaccines. In a Report of North Herts Immunogenicity Study on the 1st May 1992 meeting (http://www.dh.gov.uk/ab/JCVI/DH_095050), it was noted that “the report of a cluster of CSF mumps virus positive cases in Nottingham had caused concern that national surveillance may have been underreporting the incidence of cases...” As noted in the following Section (6), the Yellow Cards are a passive surveillance system, not routinely used by the GPs and hence, data on adverse reactions obtained through Yellow Card reports are likely to be an underestimate of the true rate of these events. Finally, since the principal rationale for shaping vaccine recommendations and policies according to the JCVI was to keep vaccination rates as high as possible so that presumably, “herd immunity” BSEM March 2011 The Health Hazards of Disease Prevention 29 would be achieved, it would seem fair at this point to question exactly how well has this concept been established? The theory behind vaccine-mediated “herd immunity” appears sound, it maintains that vaccination of a significant portion of a population (herd), will provide a measure of protection for individuals who have not developed immunity. Obviously, transmission of a disease to the point where it would reach an epidemic is expected to be countered in a population where most individuals are thought to be immune. However, the concept of vaccine-mediated “herd immunity” is based on the assumption that vaccines are effective in conferring immunity to the individual. If this were so, then how does one explain outbreaks of infectious diseases in populations where over 95% of individuals have been vaccinated? Gustafson et al.  “An outbreak of measles occurred among adolescents in Corpus Christi, Texas, in the spring of 1985, even though vaccination requirements for school attendance had been thoroughly enforced. Serum samples from 1806 students at two secondary schools were obtained eight days after the onset of the first case. Only 4.1 % of these students (74 of 1806) lacked detectable antibody to measles according to enzymelinked immunosorbent assay, and more than 99 % had records of vaccination with live measles vaccine...After the survey, none of the 1732 seropositive students contracted measles. Fourteen of 74 seronegative students, all of whom had been vaccinated, contracted measles. In addition, three seronegative students seroconverted without experiencing any symptoms. We conclude that outbreaks of measles can occur in secondary schools, even when more than 99 percent of the students have been vaccinated and more than 95 percent are immune” (Note that if the measles vaccine was effective in providing herd-protection, then the <5% of children in this study who did not seroconvert would still have had protection from contracting measles. The whole premise on achieving high vaccination rates rest on the assumption that the herd will protect those vulnerable individuals who have not been vaccinated, or do not seroconvert.) Hersh et al.  “In early 1988 an outbreak of 84 measles cases occurred at a college in Colorado in which over 98 percent of students had documentation of adequate measles immunity (physician diagnosed measles, receipt of live measles vaccine on or after the first birthday, or serologic evidence of immunity) due to an immunization requirement effect since 1986.” Tugwell et al.  “A chickenpox outbreak occurred in a school in which 97% of students without a prior history of chickenpox were vaccinated. Students vaccinated >5 years before the outbreak were at risk for breakthrough disease.” It would thus appear that these vaccines only provide waning immunity, not herd immunity, as already well established in the case of the mumps vaccine by Castilla et al.  This often has the effect of shifting a relatively mild childhood disease to older age groups of children or young adults, in whom complications and sequelae from the disease are much more severe . 6) Promoted and elaborated a plan for introducing new vaccines of questionable efficacy and safety into the routine paediatric schedule, on the assumption that the licenses would eventually be granted. On 7th May1999 (http://www.dh.gov.uk/ab/JCVI/DH_095050), the JCVI met to discuss the use of the new conjugate Group C meningococcal vaccines. At the beginning of the meeting, Professor Hull, the Chairman: “...reminded members that the minutes and proceedings of the JCVI were confidential. Politically and clinically sensitive material was dealt with by the Committee...” It was further emphasised: (8. Meningococcal meningitis, i.) BSEM March 2011 The Health Hazards of Disease Prevention 30 “This was the main agenda item for the meeting. Much information had been made available and important decisions were required of the Committee, particularly about the introduction of meningococcal Group C conjugate vaccine, of which three brands would soon become available. Any decision would be dependent on the granting of product licenses and the wording of those licenses and, during the discussion, the Committee had to act on the assumption that licenses would be granted. The MCA was responsible for the safety, efficacy and quality of vaccines. The question for consideration by the Committee was how it would recommend that the vaccine should be introduced.” The Committee members were also once again: “...reminded that this issue, and the papers presented, was extremely sensitive, commercially and politically. It was requested that confidentiality be maintained.” The Chairman had then asked for any declarations of interest: “Professor Cartwright was involved in manufacturers’ studies on the vaccines, including health trials. Dr Goldblatt was involved in one company-sponsored study and had provided a clinical expert report to the MCA for one manufacturer. Dr Jones was involved in trials for two of the companies involved. Dr Schild said that NIBSC was evaluating the vaccines.” In spite of these substantial conflicts of interests: “There were no objections to these members continuing to take part in the meeting and it was agreed that they would be able to provide a valuable input to the discussion in common interest.” We are only left to speculate as to what such “common interest” might have been, between the JCVI and the pharmaceutical industry, bearing in mind several past instances where the Chairman of the JCVI met with the Association of British Pharmaceutical Industries to discuss: “...the availability of scarce vaccines and the introduction of new vaccines into more regular use. The question of financial support for training members of the health service in immunisation was also discussed.” (18. Meeting of the Chairman of the JCVI and the Association of British Pharmaceutical Industries, JCVI meeting on 23rd October 1987; http:// www.dh.gov.uk/ab/DH_095169) or where: “The Chairman said that Departmental officials had recently met vaccine manufacturers who were keen to be informed, in confidence, of the outcome of JCVI discussions which might affect their own plans.” (2.iv. JCVI meeting on 4th May 1990 (http://www.dh.gov.uk/ ab/DH_095169) The apparent close ties between the pharmaceutical industry, JCVI and the DH perhaps explain why the DH funded studies were not adequately designed to detect long-term vaccine-related adverse outcomes. In discussing 8.4.1 Meningococcal C Conjugate (MCC) Vaccine Evaluation Programme, at the 7th May1999 JCVI meeting (http://www.dh.gov.uk/ ab/JCVI/DH_095050), Dr Elizabeth Miller reported: (i.) “Papers providing data on the new vaccines’ safety and efficacy and data from the Department of Health funded studies were looked at; no other country had conducted similar studies. The Medicines Control Agency had also gathered lots of information and NIBSC was evaluating the vaccines. The data provided to the Committee related to the Wyeth product, which would be the first to become available. All available ADR [adverse reactions] data was included; the follow-up of ADRs had been up to the end of 4 to 6 weeks.” It should be obvious that long-term adverse reactions cannot be identified if a study is not designed to detect them (and quite predictably there were none, since the DH funded BSEM March 2011 The Health Hazards of Disease Prevention 31 studies showed that the MCC vaccines were well tolerated, section 8.4.1. vii., 7th May1999 JCVI meeting; http://www.dh.gov.uk/ab/JCVI/DH_095050). The reason for such omissions in study design are bewildering, given the past safety issues with the measles vaccine, where several children “were left one year later with severe handicap.” (7. Suspected adverse reactions to measles vaccine: recent reports to the CSM, JCVI meeting on 17th of June 1983; http://www.dh.gov.uk/ab/JCVI/DH_120115) Not only did the safety of the new, soon-to-be introduced MCC vaccine remain questionable, but also: (ii.) “There was no good evidence for the efficacy of the meningococcal Group C conjugate vaccine, only the surrogate of antibodies compared with those known to be protective against invasive disease. To actually test the efficacy on the conjugate vaccine it would be necessary to introduce the vaccine and then conduct a Phase III or Phase IV study to test efficacy; this would be very difficult to do and would delay introduction by 3-5 years.” In the ensuing discussion we are told that the JCVI: (iii.) “...felt that it was important to plan the programme now and confirmation that the vaccines were equally effective could follow.” In other words, the JCVI and the DH were actively working on a plan to introduce a vaccine with no demonstrable safety or efficacy into a routine paediatric schedule. Apparently, those responsible for sound safe and effective immunisation policies concluded that it was “very difficult” to conduct the necessary trials and they felt that this would unnecessarily delay the introduction of the MCC vaccine into a routine immunisation schedule. What should have been considered by the JCVI is that vaccines represent a special category of drugs, generally given to healthy individuals and often to prevent a disease to which an individual may never be exposed . Because of this, according to the US FDA, significant emphasis should be placed on vaccine safety . Thus, If there are uncertain benefits from a vaccine, only a small level of risk of adverse effects may be acceptable. If the benefits are certain, then a greater risk of side effects may be tolerated. However, neither of these two points would have applied in the case of the MCC introduction programme, since there is absolutely no clinical benefit to a child from a vaccine that has neither been proven to be safe nor effective. The only “benefit” from such a programme would have been more in line with certain “common interests” rather than public health. What followed at the 7th May 1999 meeting (http://www.dh.gov.uk/ab/JCVI/DH_095050), was a discussion on priority groups to whom the MCC vaccine should be offered, in which Dr Smithson made a following remark: (ix.) “...there was very little to chose between the priority age groups but suggested that infants were easier to target.” Finally, the Committee concluded that: (x.) “...if sufficient vaccine was available, all children should have it...” In the following meeting, held on 21st January 2000 (http://www.dh.gov.uk/ab/JCVI/ DH_095050), in section 6.4 Meningococcal C Conjugate (MCC) Vaccine Evaluation Programme, Dr Elizabeth Miller reported that several safety studies indicated that the new vaccine was not a cause for concern. Although, (6.4.4) BSEM March 2011 The Health Hazards of Disease Prevention 32 “... headache, particularly if it was associated with muscle stiffness inevitably raised fears of actual meningitis, although the vaccine could not cause this.” Furthermore: (6.4.6) “The Committee noted that this information would not have been available without the cooperation of the manufacturers. This had given everyone much more confidence in the vaccine programme and was a unique co-operation.” In the following meeting, on 9th October 2000 (http://www.dh.gov.uk/ab/JCVI/ DH_095050), the Committee was given an update on the safety profile of the MCC vaccine: (7.6.2) “The Working Party had received data available and had concluded that an association between MenC vaccine and seizures had not been proven. There had been 14 deaths reported. (2 further deaths had since been reported: 7 of the deaths were SIDS, 2 were meningitis B, 3 were in children with underlying conditions 1 was pneumococcal septicaemia, 1 was infantile encephalitis, 1 bronchiolitis and 1 child collapsed one month after immunisation with no cause of death being found).The Working Party believed that the deaths were all explained by other causes and that the vaccine was most unlikely to be implicated. By 21 September 2000, there had been 8.300 reports of 17,000 ADRs (1 ADR per 2,000 doses). The profiles were the same for each brand of vaccine.” Note that the Working Party “believed” that the vaccine was not implicated. An even firmer belief in MCC vaccine safety was held by the JCVI: (7.6.3) “The Committee did feel that the MCA statement that there was “no evidence that the vaccine caused meningitis” was far too light: the vaccine categorically did not cause meningitis. The MCA Meningitis Working Party would consider this issue further...” How the JCVI could claim with such definite certainty that the newly introduced and poorly tested MCC vaccine could not cause meningitis is not clear from the transcript. Amongst those who did not share similar views with regards to vaccine safety are Alexander Harris Injury and Accident Solicitors and their clients, families whose children appear to have suffered severe long-term health problems fol l owing MCC vaccination. From t h e i r websi t e (http:// www.alexanderharris.co.uk/OurWork/ProductLiability/MeningitisCVaccine/Pages/default.aspx), we learn that safety concerns about MCC vaccine were first raised by the media (and not the UK health authorities) and that: “Some 16,527 adverse reactions from 7,742 patients had been reported by GPs to the Medicines Control Agency through the Yellow Card reporting system. As well as reactions at the site of the injection such as swelling and soreness were other long-term reports which included seizures and 12 deaths.” This appears to be consistent with the data reported at the JCVI 9th October 2000 meeting. Further, the Solicitors made an important observation: “The Yellow card reporting system is not routinely used by most GPs and healthcare professionals and as such the figures for adverse reactions are likely to be an underestimate. Despite the known under-reporting, the number of adverse reactions reported for Meningitis C vaccine is the highest for any vaccine within the UK immunisation programme.” 7) BSEM March 2011 The Health Hazards of Disease Prevention 33 8) Actively discouraged research on vaccine safety issues. On 14th October 1985 a letter was issued to Dr Derek Zutshi (DHSS), from a member affiliated with the London School of Hygiene and Tropical Medicine at the University of London, whose name was erased from the copy of the letter prior its FOI release (http://www.dh.gov.uk/prod_consum_dh/ groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4140359.pdf): “Dear Derek Enclosed are comments on the estimates of vaccination-associated SIDS as presented at the recent ARVI meeting. I hope they prove helpful. Let me add that this is a complicated problem, but one that I would be interested to pursue in the future.” In three pages, the author of the letter made several comments on “Tabled Paper 1, (Appendix to ARVI/85/34)”, titled “Note on the estimation of sudden infant deaths expected to occur by chance after immunization”, authored by Paul EM Fine from the London School of Hygiene and Tropical Medicine. A balanced critical overview was given on three key points relevant to Paul EM Fine’s estimation of SIDS: “method used”, “data used” and “assumptions made”, outlining both strengths and limitations. In a final note, the author concluded: “These brief comments indicate a number of problems which arise in estimating the number of SIDS deaths expected to arise by chance, within 24 hours of vaccination, if there were no causal association between them. Some of these problems favour overestimation and others favour underestimation by the methods used in the DHSS note. Given the nature and direction of the biases, it is probable that the estimates presented in the DHSS note are of the correct order of magnitude. On the other hand, given the importance of the subject, a more thorough examination of the subject seems appropriate.” Copies of this letter appear to have been forwarded to Dr M Graveney (DHSS) and Professor RW Gilliatt (JCVI). Two months later, on 13th December 1985, on the University of Nottingham, Department of Child Health’s letterhead, a member whose name was erased from the copy of the letter released under FOI (http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/ digitalasset/dh_4140362.pdf), also wrote to Dr Derek Zutshi, to express his grave concerns about potential further investigations into the relation between vaccination and SIDS: “Dear Derek I showed the Tabled Paper 1, (Appendix to ARVI/85/34) to Richard Madeley [Department of Community Medicine and Epidemiology, University of Nottingham Medical School] and he kindly prepared the enclosed observations. I agree with everything that he has said. As you know, at the meeting I had grave misgivings about the exercise and of the assumptions that were made.” In the following section, “Re: Note on the estimation of sudden infant deaths expected to occur by chance after immunisation”, apparently from the author of the “enclosed observations”, Richard Madeley, several reasons are given for his own misgivings “about the exercise”, some of which appear to be sound, such as: (3. The hypothesis that immunisation may cause SIDS) “c. Most deaths from SIDS occur before the age of four months2, when first immunisation takes place.” (note, this still does not exclude the possibility that some cases of SIDS may be vaccine-related) while others appear not as sound: “d. There is no foolproof method of discrediting the hypothesis by statistical or epidemiological methods. On the contrary, there is a danger of getting drawn into a lengthy BSEM March 2011 The Health Hazards of Disease Prevention 34 argument about numbers which neither side could win, thus giving more credibility to the hypothesis than it deserves.” (it ought to be noted that in the realm of science, a hypothesis can only be proven or disproven by experimental evidence and not by personal opinions) In his “Final Comments and Conclusions” the author stated: “For those reasons, I think it would be extremely unwise for the DHSS to get involved in any type of epidemiological work on this hypothesis. The hypothesis seems most unlikely on grounds of basic scientific reasoning, and such evidence as already exists points in the opposite direction.” “To go ahead in these circumstances would endow upon the hypothesis a respectability which it does not deserve. It is impossible to disprove through numbers. To try to do so, using flawed assumptions, as in the memorandum of the DHSS Statistics Division, weakens the position.” Indeed, epidemiological work would not be the most appropriate way to address the possibility that SIDS could be causally related to vaccination given that epidemiological studies only test for “association” and not “causation”. However, case control studies as well as post-mortem lab analysis should have been considered as viable alternatives to further research. Such as: Ottaviani et al.  “Herein we report the case of a 3-month-old female infant dying suddenly and unexpectedly shortly after being given a hexavalent vaccination. Examination of the brainstem on serial sections revealed bilateral hypoplasia of the arcuate nucleus. The cardiac conduction system presented persistent fetal dispersion and resorptive degeneration. This case offers a unique insight into the possible role of hexavalent vaccine in triggering a lethal outcome in a vulnerable baby. Any case of sudden unexpected death occurring perinatally and in infancy, especially soon after a vaccination, should always undergo a full necropsy study according to our guidelines.” “The identification of a possible pathological basis of reflexogenic mechanisms in sudden, unexpected infant death necessarily requires examination of the brainstem nuclei and of the cardiac conduction system on serial sections.” The senior author of this study, Professor Luigi Matturri is a member of the European Medicines Agency (EMEA) Pathologists Panel for evaluation of SUD (sudden unexpected death) cases reported for hexavalent vaccines. In a review by EMEA cited in the Introduction of the study, of five reports of unexplained deaths in children which occurred within 24 hours of vaccination with a hexavalent vaccine, panels of experts (including pathologists with the experience in the field of vaccines and SIDS), investigated whether there might have been a link between the vaccines and the deaths observed: “The EMEA’s conclusions were that the causes of death remained unexplained. SIDS, viral infection, metabolic disorders, allergic reactions or airway obstruction were plausible but were not definitely proven to have been the cause of death . However, to the best of our knowledge, during the mentioned post-mortem investigations, little, if any, attention was paid to examination of the brainstem and the cardiacconduction systems on serial sections, nor was the possibility of a triggering role of the vaccine in the lethal outcome considered.” In addition, in responding to numerous criticisms of their study Unexplained cases of sudden infant death shortly after hexavalent vaccination  Zinka et al. noted : “(ad 6) The main problem is that vaccination specialists have failed for decades to establish any tests or other criteria to find out if adverse events are linked to vaccinations or not. To our knowledge they did not even try hard—why?!” “(1) A precise description of the mechanism leading to serious adverse events after hexavalent vaccination is not the task of forensic pathology. This would be the job of vaccination specialists, and actually this job should have been done before phase 1 and phase 2 studies in order to get valid data on the drug safety.” BSEM March 2011 The Health Hazards of Disease Prevention 35 In summary, it may be inferred from here that the real reason why causality is rarely (if ever) established by scientific investigations into vaccine-related serious adverse outcomes is because it is assumed that: a) they don’t happen and b) the study is not designed to detect them. This may further suggest that vaccines are not proven to be safe but are only assumed to be safe. Indeed, according to the US FDA “Historically, the non-clinical safety assessment for preventive vaccines has often not included toxicity studies in animal models. This is because vaccines have not been viewed as inherently toxic” . 9) Deliberately took advantage of parent’s trust and lack of relevant knowledge on vaccinations in order to promote a scientifically unsupported immunisation program which could put certain children at risk of severe long-term neurological damage. Recently the DH announced that there would be a significant change in the current UK immunisation schedule, following the October 2010 meeting at which the JCVI recommended that children be vaccinated against six diseases at the same time. This would be through receiving three vaccines (Hib/MenC, MMR and pneumococcal) in one visit rather than getting the first vaccine at 12 months of age and the second two at 13 months of age. According to a letter sent by the Chief Medical Officer Professor Dame Sally Davies to local GPs (http://www.dh.gov.uk/en/ Publicationsandstatistics/Lettersandcirculars/Professionalletters/Chiefmedicalofficerletters/ DH_121748), this new “simplified” immunisation policy is to be implemented "as soon as practicable". Furthermore, according to a BBC news report on 22nd November 2010 (http:// www.bbc.co.uk/news/health-11809967), the purpose for vaccinating against 6 diseases at one single appointment is “to boost vaccine uptake”, which has apparently been low ever since safety concerns regarding the MMR vaccine had been raised in public following the study of Wakefield et al. in 1998 . Despite continued public concerns on the overall safety of the MMR and its possible link to autistic regression and other severe neurological outcomes, the DH spokesperson stated (http://www.dh.gov.uk/en/MediaCentre/Statements/DH_122026): “Independent scientific research has shown that providing these vaccines at the same time is safe, effective and more convenient for parents.” I have requested from the UK DH to show me these independent data. The request was granted, and much more than that. First to the independent data: they are not independent. The study by Miller et al. , referenced by the DH states in the acknowledgments: “This is an independent report funded by the Policy Research Programme in the Department of Health, UK, grant 039/031.” As for the safety assessment: “For safety, proportions of children with erythema, swelling or tenderness at site of injection, or fever or other systemic symptoms for 7 days after immunization were compared between regimens. No adverse consequences for either safety or immunogenicity were demonstrated when MCC/Hib was given concomitantly with PCV and MMR at 12 months of age or separately at 12 and 13 months of age.” Thus the vaccine was “demonstrated safe” based on a 7 day follow-up and monitoring for largely local reactions. Not only is this an appalling example of a vaccine safety study, it is the only study quoted by the DH and JCVI in support of their decision to implement a new vaccine schedule. This is evident from a Possible simplification of the childhood vaccination schedule report (http:// www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@ab/documents/digitalasset/ dh_121799.pdf), issued by the JCVI Secretariat in October 2010, which states: (4.) BSEM March 2011 The Health Hazards of Disease Prevention 36 “In June 2009, JCVI considered a pre-publication clinical trial paper from Miller et. al. that showed that co-administration did not adversely affect the immune response elicited by the vaccines. In addition, no safety concerns around co-administration were identified.” The JCVI report further states: (Annex A, Background) “In June 2009 the Joint Committee on Vaccination and Immunisation concluded that there is no scientific reason to keep the combined Hib and Meningitis C vaccine (currently given at 12 months) and the MMR and pneumococcal vaccines (given at 13 months) separate.” The “no scientific reason” is grossly misleading. Once again, it should be obvious that safety concerns cannot be identified if the study is not designed to detect them. Autistic regression is known to occur gradually over periods of weeks to many months. In spite of this, the vast majority of studies which are presumed to provide conclusive evidence on the safety of vaccines, have short follow ups and focus almost exclusively upon acute near-immediate events [23-29]. In addition, the fact that in 2008 The US federal Advisory Committee on Immunization Practices (ACIP) voted to withdraw their initial recommendation for the use of measles, mumps, rubella, and varicella vaccine (MMRV, marketed by Merck & Co., Inc. as ProQuad) as the vaccine of choice for vaccination of infants, because it was associated with double the risk of febrile seizures when compared to the MMR, shows that there is indeed solid reason for concern over simultaneous administration of multiple vaccines. Proquad contains only four vaccines in combination, not six. The research from The Vaccine Safety Datalink (VSD), considered by the ACIP, evaluated the incidence of febrile seizures in 43,000 children between the ages of 12 and 23 months who had been vaccinated with ProQuad and 315,000 who had received two separate MMR and varicella vaccines. Within 7 to 10 days after vaccination, those given ProQuad suffered twice as many seizures (http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5710a3.htm): “The preliminary results indicated a rate of febrile seizure of nine per 10,000 vaccinations among MMRV vaccine recipients compared with four per 10,000 vaccinations among MMR vaccine and varicella vaccine recipients.” The multivalent vaccine Hexavac was also recently withdrawn following a recommendation from the EMEA (http://www.ema.europa.eu/docs/en_GB/document_library/Press_release/2009/12/ WC500017695.pdf) “as a precautionary measure“, due to its poor effectiveness. Safety concerns have also been raised over administration of hexavalent vaccines by Ottaviani et al.  and Zinka et al.  the latter, following five cases of infant deaths in Germany in 2005 (all occurring within 48 hrs of vaccination). The post-mortem analysis of six children aged 4-17 months (5 of whom were vaccinated with Hexavac and one with another hexavalent vaccine, Infanrix Hexa) reported by Zinka et al. , revealed abnormal pathologic findings particularly affecting the nervous system. Although there is no conclusive proof that these deaths were directly caused by vaccination, the authors felt it was: “...important to inform vaccinating physicians and pediatricians as well as parents about such possibly fatal complications after application of hexavalent vaccines.” In spite of these relevant findings, no mention of these two studies is found in the DH and the JCVI reports regarding the introduction of the new “simplified” and “improved” schedule. Other than the paper by Miller et al. , the DH also provided me with the official report on their research on parents’ attitudes to the possibility of administering the Hib/MenC, PCV and MMR vaccines on a single occasion. Following their initial consideration of the draft paper by Miller et al., in 2009, the JCVI did recognize the need to seek parent’s opinion on the proposed “6 in 1” program before making any changes to the current schedule. In February 2010, the DH initiated this research and subsequently published it in a document Childhood immunisation programme: Attitudinal research into combining 12 and 13 month immunisations which is now available on the DH website at: http://www.dh.gov.uk/en/Publichealth/Immunisation/Marketresearch/index.htm BSEM March 2011 The Health Hazards of Disease Prevention 37 http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/ digitalasset/dh_122329.pdf What the Attitudinal research found was that parent's knowledge on childhood's current immunisation timetable, particularly around 12 and 13 months, was generally low and apparently, the DH and the JCVI are content with keeping it that way, in order to preserve the national vaccination program. The DH and the JCVI concluded that informing parents of the changes would be “unwise” because it would create unnecessary panic. In order to prevent this, the health officials need to be instructed on how to “reassure” parents in the safety of vaccines, especially the MMR. According to the Attitudinal research report, parents generally trusted the schedule and the NHS, however, some had reservations about the MMR, particularly if it was to be combined with other vaccines. Specifically, the Research Management Summary on Behalf of the DH from a Possible simplification of the childhood vaccination schedule report (http://www.dh.gov.uk/ prod_consum_dh/groups/dh_digitalassets/@dh/@ab/documents/digitalasset/dh_121799.pdf), issued by the JCVI Secretariat, states that: “While the principle of combining vaccinations and/or giving more than one at the same time appeared largely to be accepted, if one of these is MMR, views can change.” (Conclusions and Recommendations: 2.) In light of this explicit concern, the DH report noted: “The combined schedule at 12 and 13 months was regarded with mixed feelings; if it is introduced, the way in which it is communicated will have a significant impact on how it is received. Given low awareness of the immunisation schedule, parents are unlikely to notice the change until informed about it.” [their emphasis added-italicised] (Conclusions and Recommendations: 3.) They further elaborated on this particular finding: “When the combined schedule was presented to parents first (before seeing the current schedule), very few identified the appointment at a year of age as different or worthy of comment. Parents’ problems and worries only came to the surface when the combined option was explicitly presented as a change to the schedule. Those in areas where the combined schedule is apparently already being given accepted it without question. When parents were told that the new schedule involves giving MMR and PCV at the same time as another vaccine, some changed their views, including some of those who were otherwise accepting of MMR.” (Conclusions and Recommendations: 4.) On the basis of the above observations the DH concluded that it is best to keep parents ignorant of the proposed changes, in order to avoid what they deemed as “unwarranted anxiety”, as this would most likely lead to reduced immunisation rates: “Offering parents a choice between the two schedules could generate more questions than answers, and seems unwise. It might also risk compromising current understanding of the vaccination schedule as ‘just what happens’, and reframing it as optional, which could reduce vaccine uptake.” (Conclusions and Recommendations: 5.) Consistent with their past legacy that apparently puts priority on the preservation of the vaccination program rather than the safety of an individual, the British Health Authorities consider it “unwise” that parents should have a choice as to how immunisations are to be carried out. So much so that special action is needed to assure that their efforts in promoting vaccination are not hampered. In particular, to the DH it “seems sensible” to, somehow, camouflage the change in the vaccination schedule in order to prevent what they deem as “unwarranted anxiety”. “It is also clear that offering parents detailed information, and flagging up changes, can generate anxiety where it is not warranted. In light of this, it seems sensible to introduce the combined schedule as far as possible without announcing it explicitly as a change.” (Conclusions and Recommendations: 6.) BSEM March 2011 The Health Hazards of Disease Prevention 38 Indeed, the DH offers an elaborate strategy for addressing parental concerns about the “improved” and “simplified” vaccination program: “If the combined immunisation is introduced, some parents will have questions about it, and health professionals, especially health visitors and practice nurses, will be their first port of call for information. Health professionals will have an important part to play in informing and reassuring parents, and they will need to provide consistent answers; any variation between what they say is likely to create a sense of unease among parents.” (Conclusions and Recommendations: 7.) In revealing further details on how the health staff should approach those parents who may have concerns over the safety of the MMR vaccine, the DH advises: “Health professionals will need to be ready to reassure parents that… • combining vaccinations into one appointment and giving three at a time is entirely safe • the fact that MMR is one of these makes no difference, because MMR is safe • there is a good reason for the change: though the current system is effective and safe, changing it will be an improvement • there are significant benefits to baby and parent in having one fewer appointment and reduced distress” It should be obvious that any a priori exclusion of possible adverse effects from vaccines which is not based on valid scientific evidence but rather, a belief system is not by definition scientific. Rather, it reflects a disturbing trend to view anything associated with vaccines and vaccine policy as sacred and beyond scientific scrutiny. The need to protect the UK government-mandated vaccination program against any reasonable doubt, in the absence of any truly independent scientific evidence and despite a) CSM/JCVI/ARVI’s own records discussed under Sections 1)-3) & 5) which show that vaccines, including measles and the MMR are not “entirely safe” and b) the government’s own concession that the MMR can in fact cause permanent brain damage (in the case of Robert Fletcher who in August 2010 received £90,000 payout for epilepsy and severe mental retardation that he suffered following the MMR jab; http://www.bbc.co.uk/news/uk-englandmerseyside- 11125343), is even more disturbing. If vaccines are indeed entirely safe as the DH and the JCVI claim, why do they feel they need to hide information from parents and health professionals? Perhaps “combining vaccinations into one appointment and giving three at a time is” not “entirely safe” As a reminder (JCVI meeting, 11th December 1974; http://www.dh.gov.uk/ab/JCVI/DH_095052): (11 Simultaneous administration of live vaccines (CHCS(VI)14)) “Professor Dick and Dr Warin pointed out that an interval in the administration of live vaccines had been advocated in view of the probability of adverse reactions and because of the recent publicity surrounding adverse reactions. The Committee agreed that it would be inopportune to change the guidance that an interval of at least 3 weeks should be allowed to elapse between the administration of any 2 live vaccines whichever came first.” The above would explain the need to censor certain information as well as why the JCVI went to great lengths in devising a special strategy with which such a task would be achieved: “Given continued sensitivity about MMR, any negative news coverage will have a significant impact. Health professionals will be the front line in combating this, and will need to be kept fully informed on the latest information from JCVI and DH to prevent any contradictions or confusion, and to ensure that they are equipped to reassure parents.” (Conclusions and Recommendations: 9.) BSEM March 2011 The Health Hazards of Disease Prevention 39 The choice of words is rather peculiar here, it appears as if the DH and the JCVI are preparing for war. Their choice of weapons includes “educating” health professionals with what appears to be highly censored information, since numerous truly independent studies which raised safety concerns in the scientific community (particularly about the MMR vaccine), were simply dismissed by the JCVI (see Section 4). Both the JCVI and the DH opted instead for the methodologically dubious study by Miller et al.  as their only evidence to promote the new “improved” and “simplified” immunisation program. This obvious information bias is to be promulgated by the JCVI/ DH to the health profession. Furthermore, according to the DH, it is not only important to censor information given to both parents and health professionals, the way in which this information is to be communicated is also very important. “It is important that the information given by health professionals is pitched at the right level. The JCVI information prompted questions among many respondents, but was useful for reassuring some, particularly those with a more pragmatic view of immunisation. Information at this level needs to be carefully tailored by health professionals according to the attitudes of individual parents.” The corresponding section from the Attitudinal research report (http://www.dh.gov.uk/ prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_122329.pdf) adds: “If in doubt, we would suggest keeping it simple, as outlined above.” (D Conclusions; 3. Dealing with questions about the change to a combined schedule) Since some disclosure to the parents on adverse events associated with the combined schedule is necessary, it is further regarded that in spite of some: “...diverging views on when the sheet should be given to parents; on balance it seems wise to hand it out immediately before vaccination, so that parents feel they have been given advance warning, but do not dwell on the content to the extent that they begin to worry.” (D Conclusions; 4. The tear-off sheet on side effects) The idea of “keeping it simple” was also welcomed by the health professionals. Indeed, as already discussed in Section 5), the public may not understand correctly the significance of febrile convulsions. Nor would anyone want the public to dwell extensively on associations between the words “vaccine” and “death” or “permanent brain damage”. One has to wonder whether parents who to this day continue to trust the British Health Authorities on matters of immunisation, would still have the same opinion if crucial facts on vaccine-associated adverse events discussed in “commercial” and “in confidence” CSM/JCVI/Joint Sub-Committee ARVI meetings were fully disclosed to them: From the Attitudinal research report (pg 22): “To my eyes these things have all been tried and tested, the medical people studied for years, they tried all of this stuff. They obviously know getting these things correctly so my trust is in their hands really at the end of the day.” From a discussion on a proposal for the surveillance of severe neurological disorders in infancy and their relationship to pertussis vaccine, 7th February 1986, CSM/JCVI/Joint Sub-Committee ARVI ( h t t p : / / w w w . d h . g o v . u k / e n / F r e e d o m O f I n f o r m a t i o n / Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306): (6.5.1) “It was considered unreasonable to ask paediatricians to report for a period of six years.” “No attempt would be made to study serious neurological disease arising from pertussis and other infectious diseases.” From Miller et al.  BSEM March 2011 The Health Hazards of Disease Prevention 40 “For safety, proportions of children with erythema, swelling or tenderness at site of injection, or fever or other systemic symptoms for 7 days after immunization were compared between regimens.” From the JCVI meeting held on 3rd November 1981 (http://www.dh.gov.uk/ab/DH_095169): (5.d. Comments on Professor Stewart’s letter) “Professor Gilliatt observed that in the Meade Panel Study one-third of children with brain damage were not admitted to hospital. In both the Meade and Dudgeon studies there were examples of children who had a fit soon after vaccination which was followed by a fit at a later time and then followed by cessation of development. It was very difficult to assess this as a random event...The Chairman concluded that much was not known about the natural history of brain damage in the young.” From the Attitudinal research report (pg 22): “...the diseases must be serious and pose a risk – ‘the NHS wouldn’t put children through it [so young] if it wasn’t necessary.” From the JCVI meeting on 11th December 1974 (http://www.dh.gov.uk/ab/JCVI/DH_095052): (10.) “...mumps vaccine was unnecessary because complications from the disease were rare. The Committee agreed that there was no need to introduce routine vaccination against mumps.” From a discussion on a proposal for the surveillance of severe neurological disorders in infancy and their relationship to pertussis vaccine, 7th February 1986, CSM/JCVI/Joint Sub-Committee ARVI ( h t t p : / / w w w . d h . g o v . u k / e n / F r e e d o m O f I n f o r m a t i o n / Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306): (6.5.1) “No attempt would be made to study serious neurological disease arising from pertussis and other infectious diseases.” From the Attitudinal research report (pg 23): “They’re in the book and they say you should do them, I think if I don’t do them then that’s wrong. They know what they’re doing.” From the “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting, held on 5th October 1984 (http://www.dh.gov.uk/ab/JCVI/DH_095294): (9.) “Fetal damage after accidental polio vaccination of an immune mother. Barton AE et al. Journal of the RCGP 1984: 34: p. 390-394 Dr Smith observed that the termination of the pregnancy at 20 weeks in this case report was not related to the administration of oral poliovaccine (OPV).” Note: how such conclusion could be reached remains unclear since: “However, the foetus was reported to have signs of infection with poliovirus in the nervous system although no similar event had been previously seen after vaccination.” From the Attitudinal research report (pg 23): “I don’t think they would put something into a child that is not good for them.” BSEM March 2011 The Health Hazards of Disease Prevention 41 “I put my hands in the medical profession and they do a good enough job for me and I trust them.” “Surely they wouldn’t give these injections if they felt they would harm?” “I do think it’s a good thing. You want to try and protect your children so if that’s what they’re suggesting they have to have done you should trust your health professionals.” “Because they’re recommended you kind of trust the doctors to guide you.” From the “commercial in confidence” CSM/JCVI/Joint Sub-Committee ARVI meeting, held on 6t h July 1987 (http://www. d h . gov.uk/en/FreedomOf I n formation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306): (6.1 Whooping cough) “He explained that in February the CSM had called for ARVI’s advice about updating the statement made in the 1981 report on Whooping Cough (HMSO) about a possible link between DTP immunisation and serious neurological illness. It had been hoped that by this means ‘discovery’ of all the relevant JCVI, CSM and ARVI documentation on whooping cough vaccine could be avoided.” From the JCVI/Joint Sub-Committee ARVI “commercial in confidence” meeting on 6th February 1987, section “7.1 Whooping cough vaccine –CSM advice” (contents of the statement that CSM wished to mod i f y ; http://www.dh.gov.uk/en/FreedomOf I n formation/ Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306): “No scientifically unassailable link has been established between DTP immunisation and serious neurological illness but we have come to conclusion, on the basis of all present evidence, that there is a prima facie case that such a link may exist. We would also agree that the evidence suggests that the vaccine causes convulsions in some children.” From the CSM/JCVI/Joint Sub-Committee ARVI “commercial in confidence meeting on 3rd October 1 9 8 6 ( h t t p : / / w w w. d h . g o v. u k / e n / F r e e d o m O f I n f o r m a t i o n / Freedomofinformationpublicationschemefeedback/FOIreleases/DH_4135306): (5.1.3.c.) “From the above there is reason to believe that the increased relative risk of prolonged convulsions after DTP was a real one.” From the JCVI meeting on 3rd November 1989 (http://www.dh.gov.uk/ab/DH_095169): (9. ARVI Committee – Minutes of meeting 6 October 1989 (JCVI (89)25) “Dr Schild reported that NIBSC was now able to distinguish clearly the wild strains from each of the two vaccines, and isolates from CSF clearly showed Urabe in all three cases believed to be associated with vaccine-although it should not be assumed that Jeryl-Lynn is not capable of the same result.” From the JCVI meeting on 7th May 1999 (http://www.dh.gov.uk/ab/JCVI/DH_095050): (8. Meningococcal meningitis, i.) “Committee members were reminded that this issue, and the papers presented, was extremely sensitive, commercially and politically. It was requested that confidentiality be maintained. The Chairman asked for any declarations of interest. Professor Cartwright was involved in manufacturers’ studies on the vaccines, including health trials. Dr Goldblatt was BSEM March 2011 The Health Hazards of Disease Prevention 42 involved in one company-sponsored study and had provided a clinical expert report to the MCA for one manufacturer. Dr Jones was involved in trials for two of the companies involved. Dr Schild said that NIBSC was evaluating the vaccines. “There were no objections to these members continuing to take part in the meeting and it was agreed that they would be able to provide a valuable input to the discussion in common interest.” From a discussion of the 8.4.1 Meningococcal C Conjugate (MCC) Vaccine Evaluation Programme, at the 7th May1999 JCVI meeting (http://www.dh.gov.uk/ab/JCVI/DH_095050): (ii.) “There was no good evidence for the efficacy of the meningococcal Group C conjugate vaccine, only the surrogate of antibodies compared with those known to be protective against invasive disease. To actually test the efficacy on the conjugate vaccine it would be necessary to introduce the vaccine and then conduct a Phase III or Phase IV study to test efficacy; this would be very difficult to do and would delay introduction by 3-5 years.” (iii.) “It was felt that it was important to plan the programme now and confirmation that the vaccines were equally effective could follow.” Standards of Conduct Finally, a reader may wish to assess the presented data on JCVI vaccination policies against the JCVI’s own Code of Practice (http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/ @dh/@ab/documents/digitalasset/dh_115363.pdf) which states: (Responsibilities of Committee and Sub-committee members): (30)“All members of the Committee and its Sub-committees (‘members’) must demonstrate high standards of conduct.” (31)“In exercising their duties, members must observe the ‘Seven Principles of Public Life’ set out by the Committee on Standards in Public Life (the Nolan Committee): Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties. Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit. Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. BSEM March 2011 The Health Hazards of Disease Prevention 43 Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. Leadership: Holders of public office should promote and support these principles by leadership and example.” (Conflicts of Interests) (39) Personal pecuniary8 interest “If a member has in the last 12 months received, or plans to receive a financial payment or other benefit from a business or representative body relating to vaccines or any other product or service that could be under consideration by JCVI or a Sub-committee including: • holding a directorship, or other paid position • carrying out consultancy or fee paid work • having shareholdings or other beneficial interests • receiving expenses (e.g. travel to, or registration for, conferences) and hospitality the member must declare this interest. If this interest is specific to an agenda item and the payment or other benefit is connected specifically with the product under consideration, the member will be required to absent him/herself from the discussion and any subsequent vote.” Summary In conclusion, by apparently prioritizing vaccination policy over vaccine safety, the JCVI, the DH and the Committee on Safety of Medicines (CSM) may have shown a disregard for the safety of children. Through selective data reporting, the JCVI in conjunction with the DH, has promulgated information relating to vaccine safety that may be inaccurate and potentially misleading, thereby making it impossible for the parents to make a fully informed consent regarding vaccination. Furthermore, by 1) apparently misleading patients about the true risks of adverse reactions as to gain their consent for the administration of the treatment and 2) seemingly siding with vaccine manufacturers rather than public health interests, the JCVI and the CSM appear to have signally failed their fiduciary duty to protect individuals from vaccines of questionable safety. If these provisional conclusions are indeed correct, then the information presented here may help us in understanding the UK government’s and the JCVI’s official position on vaccine damage, that is, one of persistent denial. BSEM March 2011 The Health Hazards of Disease Prevention 44 References  Food and Drug Administration (FDA). Workshop on Non-clinical Safety Evaluation of Preventative Vaccines: Recent Advances and Regulatory Considerations. 2002. http://www.fda.gov/downloads/ biologicsbloodvaccines/newsevents/workshopsmeetingsconferences/transcriptsminutes/ ucm054459.pdf, last accessed May 30 2011.  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Panenteric IBD-like disease in a patient with regressive autism shown for the first time by the wireless capsule enteroscopy: another piece in the jigsaw of this gut-brain syndrome? Am J Gastroenterol 2005; 100(4): 979-81.  Balzola F., et al. Beneficial behavioural effects of IBD therapy and gluten/casein-free diet in an Italian cohort of patients with autistic enterocolitis followed over one year. Gastroenterology 2006; 130 (Suppl. 2): S1364 A-21.  Balzola F., et al. Autistic enterocolitis: confirmation of a new inflammatory bowel disease in an Italian cohort of patients. Gastroenterology 2005; 128 (suppl.2): A-303.  Chen B, Girgis S, El-Matary W. Childhood autism and eosinophilic colitis. Digestion 2010; 81(2): 127-9.  Krigsman A, Boris M, Goldblatt A, Stott C. Clinical Presentation and Histologic Findings at Ileocolonoscopy in Children with Autistic Spectrum Disorder and Chronic Gastrointestinal Symptoms. Autism Insights 2010; 2: 1-11.  Quigley EM, Hurley D. Autism and the gastrointestinal tract. Am J Gastroenterol 2000; 95(9): 2154-6.  Shoenfeld Y, Agmon-Levin N. 'ASIA' - Autoimmune/inflammatory syndrome induced by adjuvants. J Autoimmun. 2011; 36(1): 4-8.  Ternavasio-de la Vega HG, Boronat M, Ojeda A, Garcia-Delgado Y, Angel-Moreno A, Carranza-Rodriguez C, et al. Mumps orchitis in the post-vaccine era (1967-2009): a single-center series of 67 patients and review of clinical outcome and trends. Medicine (Baltimore) 2010; 89(2): 96-116.  Castilla J, Garcia Cenoz M, Arriazu M, Fernandez-Alonso M, Martinez-Artola V, Etxeberria J, et al. Effectiveness of Jeryl Lynn-containing vaccine in Spanish children. Vaccine 2009; 27(15): 2089-93.  Gustafson TL, Lievens AW, Brunell PA, Moellenberg RG, Buttery CM, Sehulster LM. Measles outbreak in a fully immunized secondary-school population. N Engl J Med 1987; 316(13): 771-4.  Hersh BS, Markowitz LE, Hoffman RE, Hoff DR, Doran MJ, Fleishman JC, et al. A Measles Outbreak at a College with a Prematriculation Immunization Requirement. American Joumal of Public Health 1991; 81 (3): 360-4.  Tugwell BD, Lee LE, Gillette H, Lorber EM, Hedberg K, Cieslak PR. Chickenpox outbreak in a highly vaccinated school population. Pediatrics 2004; 113(3 Pt 1): 455-9.  Ottaviani G, Lavezzi AM, Matturri L. Sudden infant death syndrome (SIDS) shortly after hexavalent vaccination: another pathology in suspected SIDS? Virchows Arch 2006; 448(1): 100-4.  Zinka B, Rauch E, Buettner A, Rueff F, Penning R. Unexplained cases of sudden infant death shortly after hexavalent vaccination. Vaccine 2006; 24(31-32): 5779-80. BSEM March 2011 The Health Hazards of Disease Prevention 45  Zinka B, Penning R. Unexplained cases of sudden infant death shortly after hexavalent vaccination. Letter to Editor. Response to the comment by H.J. Schmitt et al. Vaccine 2006; 24: 5785–6.  Miller E, Andrews N, Waight P, Findlow H, Ashton L, England A, et al. Safety and immunogenicity of coadministering a combined meningococcal serogroup C and Haemophilus influenzae type b conjugate vaccine with 7-valent pneumococcal conjugate vaccine and measles, mumps and rubella vaccine at 12 months of age. Clin Vaccine Immunol 2011; 18(3): 367–72.  Kaplan SL, Lauer BA, Ward MA, Wiedermann BL, Boyer KM, Dukes CM, et al. Immunogenicity and safety of Haemophilus influenzae type b-tetanus protein conjugate vaccine alone or mixed with diphtheriatetanus- pertussis vaccine in infants. J Pediatr 1994; 124(2): 323-7.  Plennevaux E, Blatter M, Cornish MJ, Go K, Kirby D, Wali M, et al. Influenza A (H1N1) 2009 two-dose immunization of US children: an observer-blinded, randomized, placebo-controlled trial. Vaccine 2011; 29(8): 1569-75.  Li G, Zhang H, Zhou W, Ye Q, Li F, Wang H, et al. Safety and immunogenicity of a diphtheria, tetanus, acellular pertussis and Haemophilus influenzae Type b combination vaccine compared with separate administration of licensed equivalent vaccines in Chinese infants and toddlers for primary and booster immunization. Vaccine 2010; 28(25): 4215-23.  Marchant CD, Miller JM, Marshall GS, Blatter M, Aris E, Friedland LR, et al. Randomized trial to assess immunogenicity and safety of Haemophilus influenzae type b and Neisseria meningitidis serogroups C and Y-tetanus toxoid conjugate vaccine in infants. Pediatr Infect Dis J 2009; 29(1): 48-52.  Kanra G, Viviani S, Yurdakok K, Ozmert E, Yalcin S, Baldini A, et al. Safety, tolerability and immunogenicity of a Haemophilus influenzae type b vaccine containing aluminum phosphate adjuvant administered at 2, 3 and 4 months of age. Turk J Pediatr 1999; 41(4): 421-7.  Kim KH, Lee H, Chung EH, Kang JH, Kim JH, Kim JS, et al. Immunogenicity and safety of two different Haemophilus influenzae type b conjugate vaccines in Korean infants. J Korean Med Sci 2008; 23(6): 929-36. BSEM March 2011 The Health Hazards of Disease Prevention
City University of New York Law Review Volume 9 | Issue 1 Winter 2005 Quoting the Bible: The Use of Religious References in Judicial Decision-Making Sanja Zgonjanin CUNY School of Law Follow this and additional works at: https://academicworks.cuny.edu/clr Part of the Law Commons The CUNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact firstname.lastname@example.org. Recommended Citation Sanja Zgonjanin, Quoting the Bible: The Use of Religious References in Judicial Decision-Making, 9 N.Y. City L. Rev. 31 (2005). Available at: 10.31641/clr090102 Quoting the Bible: The Use of Religious References in Judicial Decision- Making Acknowledgements The author thanks Professor Ruthann Robson for her invaluable comments and suggestions. This article is available in City University of New York Law Review: https://academicworks.cuny.edu/clr/vol9/iss1/3 QUOTING THE BIBLE: THE USE OF RELIGIOUS REFERENCES IN JUDICIAL DECISION-MAKING Sanja Zgonjanin* INTRODUCTION The use of religion in judicial decision-making is the subject of an ongoing debate.1 Whether and to what extent a decision is based on religious argument or influenced by religious convictions is a difficult question to answer. While scholars disagree on the appropriateness of religious arguments or influences in judicial decision- making,2 they commonly recognize that explicit reference to religious authority in a written opinion is problematic.3 Many * J.D. Candidate, City University of New York School of Law, May 2006; M.A., Columbia University, 2000; M.L.S., Queens College, 1999. The author thanks Professor Ruthann Robson for her invaluable comments and suggestions. 1 See Constitution Restoration Act of 2005, S. 520, 109th Cong. (2005); H.R. 1070, 109th Cong. (2005). 2 Scholars differ on the issue of the appropriateness of religion in judicial decision- making. However, most legal literature on the issue is written from the perspective advocating the use of religion in judicial decision-making. That viewpoint is shared by moderates and conservatives alike. See generally MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL AND MORAL PERSPECTIVES 102-04 (1999); KENT GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE 239-41 (1988) [hereinafter GREENAWALT, RELIGIOUS CONVICTIONS]; Scott C. Idleman, The Concealment of Religious Values in Judicial Decisionmaking, 91 VA. L. REV. 515 (2005) [hereinafter Idleman, Concealment]; Teresa S. Collett, “The King’s Good Servant, but God’s First”: The Role of Religion in Judicial Decisionmaking, 41 S. TEX. L. REV. 1277 (2000); Mark B. Greenlee, Faith on the Bench: The Role of Religious Belief in the Criminal Sentencing Decisions of Judges, 26 U. DAYTON L. REV. 1 (2000); Daniel G. Ashburn, Appealing to a Higher Authority?: Jewish Law in American Judicial Opinions, 71 U. DET. MERCY L. REV. 295 (1994). 3 GREENAWALT, RELIGIOUS CONVICTIONS, supra note 2, at 239 (“Judicial opinions are formalized justifications for decisions. Opinions are supposed to refer only to what is legally relevant . . . . What is legally relevant is generally conceived to be the same for all judges, so neither personal religious convictions nor any other idiosyncratic convictions are legally relevant. Given this understanding about judicial opinions, it follows that opinions should not contain direct references to the religious premises of judges.”); Mark C. Modak-Truran, Reenchanting the Law: The Religious Dimension of Judicial Decision Making, 53 CATH. U. L. REV. 709, 814 (2004) (“In addition, judges are not insincere by leaving their religious or comprehensive justifications out of their opinions but consistent with the Establishment Clause (i.e., the ‘rule of law’) and a proper understanding of religious pluralism. Leaving out religious justifications also facilities [sic] consensus on legal results and lower-level legal rules and principles without raising the thorny philosophical, theological, and hermenuetical [sic] questions implicated by religious justifications.”); Scott C. Idleman, The Limits of Religious Values in Judicial Decisionmaking, 81 MARQ. L. REV. 537, 542-43 (1998) (“In fact, given that religious bases may be less than universal in their acceptance among the relevant audiences to the opinion, it is quite sensible that the judge would not necessarily 31 32 NEW YORK CITY LAW REVIEW [Vol. 9:31 judges are religiously active and outspoken about the impact of religion on their work.4 Some well-known Supreme Court justices were, and are, deeply religious.5 Unlike the past, today’s Supreme Court Justices, such as Antonin Scalia, speak publicly about their religious faith.6 Some judges have explicitly stated in their opinions that “[c]ourts must recognize that the state is but one of several spheres of government, each with its distinct jurisdiction and make reference to them in the act of justification.”); Bruce A. Green, The Role of Personal Values in Professional Decisionmaking, 11 GEO. J. LEGAL ETHICS 19, 35 (1997) (“One would expect that a savvy judge who bases his or her decision on personal morality will not do so explicitly, but will cite only legally relevant grounds for the decision.”); Kent Greenawalt, Religious Expression in the Public Square—The Building Blocks for an Intermediate Position, 29 LOY. L.A. L. REV. 1411, 1419 (1996); see generally David Barringer, Higher Authorities, A.B.A. J., Dec. 1996, at 68. 4 See, for example, Raul A. Gonzalez, Climbing the Ladder of Success—My Spiritual Journey, 27 TEX. TECH. L. REV. 1139, 1157 (1996), in which Texas Supreme Court Justice Gonzalez describes his religious re-awakening and the impact his faith had on his decisions, including Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984); Kennedy v. Hyde, 682 S.W.2d 525 (Tex. 1984); In re Unnamed Baby McLean, 725 S.W.2d 696 (Tex. 1987); Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1988); Cox v. Thee Evergreen Church, 836 S.W.2d 167 (Tex. 1992), Speer v. Presbyterian Children’s Home, 847 S.W.2d 227 (Tex. 1993); Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993); Tilton v. Marshall, 925 S.W.2d 672 (Tex. 1996); and Krishnan v. Sepulveda, 916 S.W.2d 478 (Tex. 1995). He concludes: In each of the above cases, my relationship with God impacted the way I considered and wrote about the issues presented. How we experience God and our level of religious commitment (or lack of commitment) impacts our work. One’s views on how the world began, sin, forgiveness, and redemption influences our attitudes, behavior, and everything that we do. Gonzalez, supra, at 1157. 5 See generally James W. Gordon, Religion and the First Justice Harlan: A Case Study in Late Nineteenth Century Presbyterian Constitutionalism, 85 MARQ. L. REV. 317 (2001); Thomas C. Berg & William G. Ross, Some Religiously Devout Justices: Historical Notes and Comments, 81 MARQ. L. REV. 383 (1998); Stephen L. Carter, The Religiously Devout Judge, 64 NOTRE DAME L. REV. 932 (1989). Some judges believe that they have a right to use religious references in justifying their decisions. Judge Griffen, who is also a Baptist pastor, explains why he thinks he has that right: Finally, devout judges must remain sensitive to the important role that religious values and their proper expression serve within a pluralistic society. If the devout judge does not remind society that certain conduct is condemned as offensive to domestic tranquility, contrary to the laws of nature, or inconsistent with truth, then society is denied the value of that information and judgment in its pursuit of justice. The give-and-take of competing moral, behavioral, intellectual, and cultural philosophies is how a pluralistic society operates. The devout judge, as a citizen of two societies, helps society remain pluralist by thinking and acting in a holistic way, not by trivializing religious conviction. Wendell L. Griffen, The Case for Religious Values in Judicial Decision-Making, 81 MARQ. L. REV. 513, 520 (1998). 6 See Joan Biskupic, Scalia Makes The Case for Christianity; Justice Proclaims Belief in Miracles, WASH. POST, Apr. 10, 1996, at A1; see also, e.g., Michael Stokes Paulsen & Steffen N. Johnson, Scalia’s Sermonette, 72 NOTRE DAME L. REV. 863 (1997). 2005] QUOTING THE BIBLE 33 limited authority granted by God,”7 and “that God, not the state or any government established by man, is the source of all our rights.”8 Some judges use religion as an alternative to traditional sentencing such as jail or rehabilitation for drug and alcohol offenders. 9 Other judges go as far as prohibiting the parents in a divorce decree from exposing their child to “non-mainstream” religious beliefs and rituals.10 Despite the unprecedented presence of religion in the lives of ordinary American citizens,11 some scholars12 continue to maintain “a modern myth that religion is somehow persecuted in American life.”13 Responding to the argument that explicit religious references are rare or absent from judicial opinions,14 this Article will demonstrate that judges’ personal religious beliefs and religious education very often find a place in decisions they write.15 A quick 7 Ex parte G.C., No. 1040001, 2005 WL 1793345, at *22 (Ala. July 29, 2005) (Parker, J., dissenting). 8 Id. at *14 (Bolin, J., concurring specially). 9 See Alan Maimon, Judge Lets Some Defendants Attend Worship as Sentencing Option, COURIER-J. (Louisville, KY), May 31, 2005, at A1. Michael Caperton, a Laurel district judge since 1994 and a devout Christian, offered the option of attending worship for ten services “about 50 times to repeat drug and alcohol offenders.” Id. 10 See Kevin Corcoran, Father Appeals Anti-Wicca, INDIANAPOLIS STAR, May 26, 2005, at A1. 11 See generally Faith Based and Community Initiatives, http:// www.whitehouse.gov/government/fbci/index.html (last visited Jan. 24, 2006). In the field of legal theory, one author suggested it is time to develop a Christian jurisprudence. Jonathan Edward Maire, The Possibility of a Christian Jurisprudence, 40 AM. J. JURIS. 101, 101-02 (1995). 12 Paulsen & Johnson, supra note 6, at 867 (commenting that Justice Scalia’s speech at a prayer breakfast at the First Baptist Church in Jackson, Mississippi, on April 9, 1996, was “about the clash of world views between Christianity and today’s dominant culture. It was about the difficulties of being a Christian in a secular world—our culture and, especially, our legal culture.”). 13 Biskupic, supra note 6, at A7 (quoting James Dunn, executive director of the Baptist Joint Committee on Public Affairs). 14 Idleman, Concealment, supra note 2, at 520 (“To most observers of the American legal system, including its participants, the absence of overt religious language or reasoning in judicial decisionmaking is unremarkable. In all likelihood, it is not even noticed.”); Modak-Truran, supra note 3, at 786-87 (“[e]xplicit religious references rarely appear in judicial opinions.”); Berg & Ross, supra note 5, at 387 (“Note, however, the limits on the importance of religious arguments. First, such arguments do not appear as often as one might expect in an age of pervasive Christianity: one can basically count them on two hands.”); Richard H. Hiers, The Death Penalty and Due Process in Biblical Law, 81 U. DET. MERCY L. REV. 751, 752 (2004) (“Biblical texts occasionally are even cited as authority in judicial opinions.”). 15 See generally J. Michael Medina, The Bible Annotated: Use of the Bible in Reported American Decisions, 12 N. ILL. U. L. REV. 187 (1991). This annotation collects cases where a court directly cites a biblical passage, and the author lists the following doctrines for which the Bible is cited as the foundation: “the sequestration rule, punitive damages, forgiveness of debts, due process, forfeiture, alien rights, statutory construc34 NEW YORK CITY LAW REVIEW [Vol. 9:31 Westlaw online survey of federal and state cases for the use of biblical books, such as Genesis, Exodus, Leviticus, and Deuteronomy, produces a high number of results.16 Interestingly, courts of the nineteenth century rarely quoted the Bible, despite the fact that many judges were devoutly religious and active in their local congregations. 17 Quoting the Bible is much more characteristic of twentieth-century American courts and is a matter of great concern to anyone who believes that judicial decision-making should not be based on comprehensive doctrines such as religion.18 The first part of this Article discusses the judicial use of the Bible in criminal sentencing by trial courts. The second part examines some of the ways in which courts undermine the religious character of biblical quotations. The third part examines the variety of purposes for which courts use biblical quotations. The fourth part is a case study of judicial use of two specific biblical tion, basic agency doctrine, tenancy by the entirety, the two-witness rule, the right of confrontation, judicial impartiality, criminalization of sodomy, the necessity defense to criminal charges, the right of free travel, usury, eminent domain, impeachment of witnesses, the law of apportionment, property tax exemptions, double jeopardy, and various elements of past and present domestic relations law.” Id. at 189-91. 16 For example, a Westlaw search performed on February 10, 2006 resulted in the following: Genesis 1 is quoted in 10 state and 11 federal cases; Exodus 21 is quoted in 59 state and 27 federal cases; Leviticus 24 is quoted in 5 state and 8 federal cases; Deuteronomy 19 is quoted in 16 state and 7 federal cases. In the same search, the word Leviticus appeared in 126 state, 89 federal, and 4 Supreme Court cases; the word Deuteronomy appeared in 173 state, 100 federal, and 5 Supreme Court cases. This author’s review of search results showed that only a small number of quotations are part of the facts of a case. Due to the lack of more precise search methods in Westlaw and Lexis databases that would allow comprehensive inquiries of biblical quotations, this Article was limited to a discussion of a very narrow scope of biblical quotations in judicial opinions. 17 See infra Appendix. 18 John Rawls based his theory of justice on the concept of public reason shared by all citizens, “independent of opposing and conflicting philosophical and religious doctrines,” and “an overlapping consensus of reasonable religious, philosophical, and moral doctrines.” He said: The religious doctrines that in previous centuries were the professed basis of society have gradually given way to principles of constitutional government that all citizens, whatever their religious view, can endorse. Comprehensive political and moral doctrines likewise cannot be endorsed by citizens generally, and they also no longer can, if they ever could, serve as the professed basis of society. JOHN RAWLS, POLITICAL LIBERALISM 9-10 (1993). Rawls viewed the Supreme Court as the best exemplar of public reason in a society of constitutional regime with judicial review and argued that public reason is “well suited to be the court’s reason in exercising its role . . . .” Id. at 231. But see generally GREENAWALT, Publicly Accessible Grounds of Decision and Religious Convictions, in RELIGIOUS CONVICTIONS, supra note 2, at 49-84; and Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1998). 2005] QUOTING THE BIBLE 35 passages, Matthew 6:24 and Luke 16:13. The fifth part considers the judicial use of religious references other than the Bible. The Article concludes that the use of religious references in judicial decision- making should be prohibited.19 “The Christian state knows only privileges.”20 Christian faith is privileged in the United States.21 Because a privilege is not a right, the government is under no obligation to confront the injustice and discrimination created by it.22 On the contrary, since the religious beliefs of a majority of Americans are associated with Christianity, 23 such privilege is largely invisible and sustained by the power it creates.24 As is often the case, the characteristics of the majority become so internalized that they are considered the social norm.25 In a way, they “domesticate” the minority.26 Additionally, 19 “The justices cannot, of course, invoke their own personal morality, nor the ideals and virtues of morality generally. Those they must view as irrelevant. Equally, they cannot invoke their or other people’s religious or philosophical views.” RAWLS, supra note 18, at 236. 20 KARL MARX, On The Jewish Question, in 3 KARL MARX & FREDERICK ENGELS: COLLECTED WORKS 1843-44, at 146, 146 (Jack Cohen et al. trans., 1975). 21 Joseph R. Duncan, Jr., Privilege, Invisibility, and Religion: A Critique of the Privilege that Christianity Has Enjoyed in the United States, 54 ALA. L. REV. 617, 626 (2003). See, e.g., Zorach v. Clauson, 343 U.S. 306, 313 (1952) (upholding a New York City program permitting public schools to release students to attend religious instruction and stating, “[w]e are a religious people whose institutions presuppose a Supreme Being.”); Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892) (holding that a statute prohibiting the contracting of foreigners to perform labor and services did not apply to clergy, and stating that “this is a Christian nation”). 22 See Duncan, supra note 21, at 621. 23 See BARRY A. KOSMIN ET AL., THE GRADUATE CENTER OF THE CITY UNIVERSITY OF NEW YORK, AMERICAN RELIGIOUS IDENTIFICATION SURVEY 12 (2001), http:// www.gc.cuny.edu/faculty/research_studies/aris.pdf (on file with the author). According to the most comprehensive study of religious identification of American adults, done by the Graduate Center of the City University of New York, 76.5% of the U.S. population self-identifies as Christians. Id. See also Largest Religious Groups in the United States of America, http://www.adherents.com/rel_USA.html (last updated Jan. 24, 2006). 24 Duncan, supra note 21, at 622. See also Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 283 (4th Cir. 2005). Applying Marsh v. Chambers, 463 U.S. 783 (1983), the court held that the county board’s invocation policy excluding a county resident’s Wiccan religion was constitutionally sound and that the Wiccan religion was not monotheistic, did not “fit broadly within ‘the Judeo-Christian tradition,’” and lacked “the unifying aspects of our heritage.” Id. 25 See Stephanie M. Wildman with Adrienne D. Davis, Language and Silence: Making Systems of Privilege Visible, 35 SANTA CLARA L. REV. 881, 890 (1995). See also STEPHANIE M. WILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA 141 (1996). [O]ur social system is not supposed to privilege organized religion or religious belief over the secular realm. But this protection of the secular creates a peculiar vacuum, in which religion is supposed to be invisible, yet Christmas is a national holiday. Even the phrasing ‘church [but 36 NEW YORK CITY LAW REVIEW [Vol. 9:31 religious practices and expressions are widely accepted and sanctioned by courts based on their context27 or tradition.28 It is now accepted that religious practices and expressions that are deeply embedded in the nation’s history and tradition do not violate the Constitution.29 They include, among others, opening the Supreme Court session with “God save the United States and this honorable not synagogue or mosque] and state’ privileges Christianity as the defining religion for constitutional drafting. Systems of privilege and the religious/ secular dichotomy intertwine with the rule of law to contribute to the undermining of justice. Systemic privileging and oppression remain invisible and undiscussed, in accordance with the unwritten rules of our society. The rule of law does nothing to end this invisibility and may even contribute to its continuation. Thus the very act of seeing that the rule of law and systems of privilege undermine justice is itself problematic. A full attack on privileging and oppression can begin in earnest only when the legal profession recognizes this privileging dynamic. But this reality—privilege—that we must see has not even found articulation in legal vocabulary. Id. 26 The term “domestication” is borrowed from lesbian legal theory. “Domestication also describes a process of substituting one way of thinking for another. Domestication has occurred when the views of the dominant culture, in this case legal culture, are so internalized they are considered common sense.” Ruthann Robson, Mother: The Legal Domestication of Lesbian Existence, 7 HYPATIA 172, 172 (1992). 27 See County of Allegheny v. ACLU, 492 U.S. 573, 621 (1989) (holding that a display of the cr`eche in a county courthouse violates the Establishment Clause while the display of a menorah in front of a county building, in a particular setting next to a Christmas tree, does not); Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (holding that “notwithstanding the religious significance of the cr`eche,” its display by the city did not violate the Establishment Clause). Justice Burger stated: It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so “taint” the city’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol— the cr`eche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. Id. at 686. 28 See Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 269 (3d Cir. 2003) (holding that a Ten Commandments plaque affixed to a courthouse is not a real threat to the Establishment Clause). The court noted that “the age and history of the plaque provide a context which changes the effect of an otherwise religious plaque.” Id. at 264 (citing County of Allegheny, 492 U.S. at 630 (O’Connor, J., concurring)). 29 See Marsh, 463 U.S. at 788-89. Justice Burger held that a century-old practice of opening legislative sessions with a prayer by a chaplain paid with public funds does not pose a real threat to the Establishment Clause. Id. at 795. 2005] QUOTING THE BIBLE 37 Court;”30 opening a legislative session with a prayer;31 recognizing the nation in the pledge of allegiance as “one Nation under God;”32 and printing “In God We Trust” on our money,33 and posting it in court rooms, Congressional chambers, and other places of government business. After all, “In God we trust” is our national motto,34 and Thanksgiving and Christmas are national holidays.35 President Reagan even once proclaimed 1983 the year of the Bible.36 The privilege of Christian religion is also affirmed and supported by Congress. For example in 2005, members of Congress introduced a House resolution directing the Speaker of the House to display the Ten Commandments in the House Chamber in case the Supreme Court was to rule that the government display of the Ten Commandments in public places is unconstitutional.37 Advanced by Representatives King, Chabot, Bartlett, Norwood, Pitts, Westmoreland, Blackburn, Fox, Gingrey, Hostettler, Goode, and Alexander, the resolution was introduced in anticipation of the Supreme Court ruling on two Ten Commandment cases argued during the April 2005 term: Van Orden v. Perry38 and McCreary County v. ACLU.39 The resolution states, among other things, that the House “recognizes that posting the Ten Commandments in the House Chamber is a constitutionally protected expression of our Nation’s heritage and the foundation of our laws.”40 The statement that biblical commands are the foundation of our laws may come as a surprise to law school students who, upon entering law school, first 30 County of Allegheny, 492 U.S. at 630 (O’Connor, J., concurring) (reaffirming the secular purpose of “ceremonial deism” of the phrase, “God save the United States and this honorable Court,” which, despite its religious roots, does not convey endorsement of a particular religious belief). 31 Marsh, 463 U.S. at 795. See also Simpson, 404 F.3d at 282 (applying Marsh, which “teaches[ ] legislative invocations perform the venerable function of seeking divine guidance for the legislature”). But see Wynne v. Town of Great Falls, 376 F.3d 292, 301-02 (4th Cir. 2004), cert. denied, 125 S. Ct. 2990 (2005) (holding that the Town Council’s invoking of Jesus Christ while excluding deities associated with other faiths was “not constitutionally accepted legislative prayer like that approved in Marsh”). 32 4 U.S.C. § 4 (2000). 33 31 U.S.C. § 5112 (2000). 34 36 U.S.C. § 302 (2000). 35 5 U.S.C. § 6103 (1990). 36 S.J. Res. 165, 97th Cong., 96 Stat. 1211 (1982). 37 H.R. Res. 214, 109th Cong. (2005). 38 125 S. Ct. 2854, 2864 (2005) (holding that the display of a monument inscribed with the Ten Commandments on the Texas state capitol grounds did not violate the Establishment Clause). 39 125 S. Ct. 2722, 2745 (2005) (holding that displaying the Ten Commandments at a Kentucky county courthouse violated the Establishment Clause). 40 H.R. Res. 214, 109th Cong. (2005). 38 NEW YORK CITY LAW REVIEW [Vol. 9:31 learn about the history and sources of American law. One of the most popular law school books on this topic is the Historical Introduction to Anglo-American Law in a Nutshell.41 In tracing American legal history, this book starts by pointing out that most of the concepts of Anglo-American law were developed in the last eight hundred years,42 thus excluding the Bible as a direct source of our laws. The book also lays out two main sources of law upon which the American legal system relies: cases and statutes.43 The Bible is not mentioned as a source of American law. The privilege of Christianity as the predominant religion in the United States is vigorously supported by the media. While the author was working on this Article, Pope John Paul II died on April 2, 2005.44 Shortly thereafter, on April 11, 2005, Maurice Hilleman, one of the greatest scientists of modern times, died.45 While Pope John Paul II was considered by many to be one of the most important “spiritual leaders and moral teachers of the Modern Era”46 and probably one of the most famous people in the world, microbiologist Maurice Hilleman remained “the world’s best kept secret.” 47 The discrepancy in the print media coverage of the deaths of these two important persons speaks for itself and is stunning. A search of the term “Pope John” in the “Major Newspapers” section of the Lexis News & Business online database produced 1086 entries for the period between April 2, 2005, when the Pope died, and April 3, 2005, when the news was announced. In contrast, a search for “Maurice Hilleman” in the same database for the period between April 11, 2005, when the scientist died, and April 12, 2005, when the news was released, produced only four results: the Balti- 41 FREDERICK G. KEMPIN, JR., HISTORICAL INTRODUCTION TO ANGLO-AMERICAN LAW IN A NUTSHELL (3d. ed. 1990). 42 Id. at 2. 43 See id. at 95-125. For a detailed explanation of sources of Anglo-American law, see generally CARLETON KEMP ALLEN, LAW IN THE MAKING (1927); and SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I (2d ed. 1923). 44 See After 26-Year Reign, Pontiff Dies at 84, CNN, Apr. 2, 2005, http:// www.cnn.com/2005/WORLD/europe/04/02/pope.dies/index.html; Ian Fisher, Pope John Paul II Dies at 84, N.Y. TIMES, Apr. 3, 2005, at A1. 45 Lawrence K. Altman, Maurice Hilleman, Master in Creating Vaccines, Dies at 85, N.Y. TIMES, Apr. 12, 2005, at A1. 46 S. Res. 95, 109th Cong. (2005). See also S. Res. 94, 109th Cong. (2005); H.R. Res. 186, 109th Cong. (2005). 47 Patricia Sullivan, Maurice R. Hilleman Dies; Created Vaccines, WASH. POST, Apr. 13, 2005, at B6. Maurice Hilleman “invented over 40 vaccines, including those for mumps, chickenpox, measles, rubella, hepatitis A and B, meningitis, and countless variants of the flu virus.” Caroline Richmond, Obituary, Maurice Hilleman; Inventor of More than 40 Vaccines, INDEPENDENT (London), Apr. 20, 2005, at 35. 2005] QUOTING THE BIBLE 39 more Sun, the New York Times, the Orlando Sentinel, and the Seattle Times. While religious expression is recognized as part of American tradition and history, no court has yet provided a reasonable explanation of how the passage of time makes religious expression less religious and more secular so that it becomes a primary source of constitutional legitimacy.48 The proposition that religious practices and expressions do not violate the Constitution because they are accepted by a majority of society or are somehow “secularized” is a dangerous one.49 The government’s endorsement and use of religion encourages the oppression of minorities because it makes religious privilege invisible, allowing the majority in power to use the law according to its own beliefs.50 Congress is the biggest threat today to both judicial independence from religion and the court’s traditional role as the interpreter of the law. Members of Congress introduced the Constitution Restoration Act of 2005: Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity’s, officer’s, or agent’s acknowledgment of God as the sovereign source of law, liberty, or government.51 48 Charles Gregory Warren, No Need to Stand on Ceremony: The Corruptive Influence of Ceremonial Deism and the Need for a Separationist Reconfiguration of the Supreme Court’s Establishment Clause Jurisprudence, 54 MERCER L. REV. 1669, 1691-92 (2003). See also State v. Ceballos, 832 A.2d 14, 55 (Conn. 2003) (Zarella, J., concurring in part and dissenting in part). [N]ot all religious references, including allusions to the Bible, God or other biblical characters, are impermissible. This is because many words and phrases traditionally viewed as religious in nature or derived from religious sources have become, over time, an integral part of the English language, and no longer may be recognized by either prosecutors or jurors as having purely religious connotations or derivations. Consider, for example, the phrases “raising Cain” and “for whatever a man sows, that he will also reap.” Both phrases are common expressions derived from the Bible. Still other expressions, such as “an eye for an eye,” have both religious and secular origins. Id. (citation omitted). 49 Warren, supra note 48, at 1692-93. 50 See generally Duncan, supra note 21. 51 S. 520, 109th Cong. (2005); see also H.R. 1070, 109th Cong. (2005). The Constitution Restoration Act was first introduced during the 108th Congress. See S. 2082, 108th Cong. (2004); S. 2323, 108th Cong. (2004); H.R. 3799, 108th Cong. (2004). During the 108th Congress, many other bills and resolutions were introduced recog40 NEW YORK CITY LAW REVIEW [Vol. 9:31 By imposing its own religious values, the conservative religious right movement is destroying two of the most important values of American society: tolerance and pluralism.52 Attempts by conservative members of Congress to deprive the Supreme Court and the federal courts of their jurisdiction in solving disputes with religious subject matter are without precedent in our history. These attempts undermine the long-standing principle of judicial review articulated in Marbury v. Madison.53 At the same time, courts’ use of religious references and religious convictions in their decisionmaking is on the rise.54 It is hardly worth noting that, in a society with a Christian majority, the majority of judges are Christians.55 The power of the nizing the privilege of Christianity. See also H.R.J. Res. 39, 108th Cong. (2004) (constitutional amendment proposing “[a] law that prescribes the Pledge of Allegiance or provides for United States coins or currency is not a law respecting an establishment of religion because it refers to God in the Pledge or includes a reference to God on coins or currency.”); S. 1558, 108th Cong. (2003) (Religious Liberties Restoration Act proposing: the power to display the Ten Commandments on government property; the power to recite the Pledge of Allegiance on government property; the power to recite the national motto “In God We Trust” on government property; and the power to except this subject matter from the jurisdiction of federal courts inferior to the Supreme Court); S. Con. Res. 91, 108th Cong. (2004) (proposing to designate April 2005 as American Religious History Month and requesting that “the President issue a proclamation calling upon the people of the United States to observe the year with appropriate ceremonies and activities”). 52 Abraham H. Foxman, Foreword to ANTI-DEFAMATION LEAGUE, THE RELIGIOUS RIGHT: THE ASSAULT ON TOLERANCE AND PLURALISM IN AMERICA, at iii-iv (1994). This book provides an insight into the grassroots organizing and political commitment of the religious right that led to its enormous power and influence over all three branches of the government in the 1990s. The author defines the religious right as an: array of politically conservative religious groups and individuals who are attempting to influence public policy based on shared cultural philosophy that is antagonistic to pluralism and church/state separation. The movement consists mainly of Protestants, most of them evangelical or fundamentalist, a far smaller number of Catholics, and a smattering of Jews. Id. at 7. 53 See Marbury v. Madison, 5 U.S. 137, 177 (1803). “It is emphatically the province and duty of the judicial department to say what the law is.” Id. 54 See infra Appendix. 55 The first Jewish Justice of the Supreme Court, Louis D. Brandeis, was appointed in 1916 by President Wilson. See Ruth Bader Ginsburg, From Benjamin to Brandeis to Breyer: Is There a Jewish Seat?, 41 BRANDEIS L.J. 229, 233 (2002). See also Religious Affiliation of the U.S. Supreme Court, http://www.adherents.com/adh_sc.html (last modified Jan. 31, 2006) (noting that with the confirmation of Samuel Alito, the Supreme Court consists of seven Christian (Alito, Kennedy, Roberts, Scalia, Souter, Stevens, and Thomas) and two Jewish (Breyer and Ginsburg) justices). Statistics show that the Supreme Court is 78% Christian, with a Catholic majority of 56%; while 76.5% of the total U.S. population is affiliated with Christianity. Id. 2005] QUOTING THE BIBLE 41 courts to use religious references as they see fit should not be underestimated. Speaking about the power of judicial review, Alexander Bickel once said, “[t]he least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known.”56 Judges should be mindful of the power they are vested with and the public trust in their impartiality and refrain entirely from using religious references in their decision-making. Judges are bound by the Code of Judicial Conduct, which, in addition to its canons requiring that judges uphold the integrity, independence, and impartiality of the judiciary,57 clearly states: A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge’s direction and control to do so.58 The arbitrariness, inconsistency, and lack of law on the use of religious references in decision-making are some of the main reasons why such use should be proscribed. I. RELYING ON THE BIBLE IN CRIMINAL SENTENCING While the use of religious references in judicial decision-making is generally unjustified and inappropriate, the most disturbing and harmful invocation of the Bible takes place in criminal sentencing decisions. The Bible is regularly quoted during the criminal sentencing phase of trials by prosecutors and defense attorneys. In their closing arguments, both sides often invoke the Bible in order to convince juries that defendants deserve or do not deserve punishment. Even those defendants who do not wish to use biblical passages in their closing arguments, or for whom such use may be inappropriate, are coerced into doing so in response to prosecutorial use of religion. Such biblical invocation poses a great threat to a defendant’s constitutional rights.59 However, attorneys 56 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 1 (2d. ed. 1986). 57 ANNOTATED MODEL CODE OF JUDICIAL CONDUCT Canons 1 & 3 (2004). 58 Id. at Canon 3 (B)(5). 59 See generally Marcus S. Henson, Carruthers v. State: Thou Shalt Not Make Direct Religious References in Closing Argument, 52 MERCER L. REV. 731 (2001). But see Elizabeth A. Brooks, Thou Shalt Not Quote the Bible: Determining the Propriety of Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33 GA. L. REV. 1113 (1999). 42 NEW YORK CITY LAW REVIEW [Vol. 9:31 are not alone in quoting the Bible. They are increasingly joined by trial judges, who use religious references in their decision-making process and their written opinions.60 While no court has yet specifically addressed whether judicial reliance on religious convictions in written opinions violates the Establishment Clause,61 some courts have considered the issue of whether a defendant’s due process rights are violated when judges rely on religious convictions or religious texts during the sentencing phase. In one well-publicized case, televangelist James O. Bakker, convicted of fraud and conspiracy, challenged his forty-fiveyear sentence claiming a due process violation because the trial judge made personal religious remarks during sentencing.62 The Fourth Circuit held that the trial judge’s comment, “[h]e had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests,” made during sentencing, violated Bakker’s due process.63 The Bakker court recognized that the Constitution does not require judges to relinquish their religious beliefs when they assume the office, but it stated that “[c]ourts, however, cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it. Whether or not the trial judge has a religion is irrelevant for purposes of sentencing.”64 While Bakker does not involve explicit religious reference by a judge, it serves as a good example of a decision validating the utmost importance of judicial impartiality. However, judges differ on their approach to the use of religious references by their colleagues. The Ohio case of James Arnett is illustrative of the opposing views that judges hold about the use of religious references in judicial decision-making. James Arnett was sentenced to fifty-one years in prison after pleading guilty to ten counts of rape and one count of pandering obscenity to the minor daughter of his live-in girl- 60 See Lis Wiehl, Judges and Lawyers Are Not Singing from the Same Hymnal When It Comes to Allowing the Bible in the Courtroom, 24 AM. J. TRIAL ADVOC. 273, 274 (2000). 61 Modak-Truran, supra note 3, at 783. For a discussion about the lack of Establishment Clause violation challenges in capital cases involving religion during the penalty phase, closing arguments, and jury deliberations, see Gary J. Simson & Stephen P. Garvey, Knockin’ on Heaven’s Door: Rethinking the Role of Religion in Death Penalty Cases, 86 CORNELL L. REV. 1090, 1104-30 (2001). 62 United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991). 63 Id. at 740-41. 64 Id. at 740. 2005] QUOTING THE BIBLE 43 friend.65 On appeal, the court remanded for resentencing, holding that the trial judge acted outside the state’s sentencing guidelines and that she violated the defendant’s due process when she used a specific text from the Bible as a determining factor in sentencing.66 The trial judge explained to the defendant that when she had recently imposed a twenty-year sentence for a murder, at least the victim was gone and there was no pain to suffer, but in his case the victim would hurt for the rest of her life.67 The judge proceeded by describing her struggle the night before the sentencing decision about what sentence to impose when she found the answer in a biblical passage.68 The judge then quoted a passage from Matthew 18:5-6: “And whoso shall receive one such little child in my name, [sic] receiveth me. But, [sic] whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that [sic] he were drowned in the depth of the sea.”69 It is interesting to note that Judge Painter, who wrote the Ohio Court of Appeals opinion, added a footnote after the above quotation, in which he noted: We must quote from the trial transcript, which is not entirely consistent with the Bible, King James Version. The notation “sic” indicates instances where words should have been italicized and where commas should not have been added. We assume that the court reporter added these errors and that the judge read the passage correctly.70 The apologetic tone of this footnote about quoting from a nonauthoritative version of the Bible and the care taken to achieve compliance with the King James Version is most striking. The authoritativeness of the King James Version71 appears to be self-evident for readers familiar with Christian religious texts, but this is most peculiar for someone who does not belong to that majority. It is not entirely clear why the judge took such care to correct the 65 State v. Arnett, Nos. C-980172, C-980173, 1999 WL 65632, at *1 (Ohio Ct. App. Feb. 5, 1999), cert. denied 126 S. Ct. 207 (2005). 66 Id. at *2. 67 Id. at *1. 68 Id. 69 Id. 70 Id. at *1 n.1. 71 More than fifty English translations were printed before the King James Bible was published in 1611. DAVID CRYSTAL, THE STORIES OF ENGLISH 271-75 (2004). The King James Version, popularly known as the “Authorized Version,” was selected to be read in churches. Id. Most of its vocabulary and phrasing derived from the first English translation by William Tyndale, printed in 1525-1526. Id. 44 NEW YORK CITY LAW REVIEW [Vol. 9:31 errors, namely italics and misplacement of commas, or why there was a concern with whether the judge read the passage correctly. It seems almost as if there was a legal requirement that when a court cites the Bible, the King James Version must be used. After the state appealed, the Ohio Supreme Court reinstated the sentence, holding that a sentencing judge’s quotation of a religious text and the acknowledgement of its use during the deliberation process is not impermissible per se and does not violate a defendant’s due process.72 The defendant petitioned for a writ of habeas corpus claiming a violation of the First Amendment Establishment Clause and his due process rights.73 The district court held that the First Amendment claim was waived due to failure to include it in a brief and argument before the state appellate court, but that the judge’s reliance on a biblical passage as the final source for determining the sentence warranted conditional habeas relief until resentencing by a different judge.74 Subsequently, the Sixth Circuit dismissed the habeas petition, holding that the trial judge’s quotation of Matthew 18:5-675 in determining the sentence did not violate the defendant’s due process right because the biblical passage relied upon was just an “additional” source, rather than the “final” source of the decision.76 However, the dissent noted that the trial judge’s reliance on the New Testament provision to determine the sentence was dispositive because, according to the record, the judge admitted that her struggle over the final sentence was answered by this biblical passage. 77 Relying on Bakker, the dissent concluded that the use of a religious text as an authoritative source for reaching a legal result violated the defendant’s fundamental expectation of due process and expressed this related concern: If the Constitution sanctions such direct reliance on religious sources when imposing criminal sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment. The 72 State v. Arnett, 724 N.E.2d 793, 804 (Ohio 2000), cert. denied 126 S. Ct. 207 (2005). 73 Arnett v. Jackson, 290 F. Supp. 2d 874, 875 (S.D. Ohio 2003). The court found that the Magistrate Judge correctly applied the standard of review set forth in the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d). Id. at 877-78. 74 Id. at 878. 75 Arnett v. Jackson, 393 F.3d 681, 684 (6th Cir. 2005), cert. denied 126 S. Ct. 207 (2005). 76 Id. at 688. 77 Id. at 689 (Clay, J., dissenting). 2005] QUOTING THE BIBLE 45 judge would be placed in the position of not only considering statutory sentencing factors, but also deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin.78 The Sixth Circuit’s conclusion that “[t]here is nothing in the totality of the circumstances of Arnett’s sentencing to indicate that the trial judge used the Bible as her ‘final source of authority,’ as found by the district court,”79 is contrary to the trial judge’s own words: Because I was looking for a source, what do I turn to, to make, to make that determination, what sentence you should get . . . . And in looking at the final part of my struggle with you, I finally answered my question late at night when I turned to one additional source to help me.80 Although the trial judge said she turned to “one additional source,” she used the words “make that determination” when she referred to the sentence to impose.81 More importantly, she used the words “final part” and “finally answered” which clearly emphasized that the finality of her sentencing decision was solved by that one additional source.82 The plain meaning of the language “final” and “finally” was simply dismissed by the Sixth Circuit. The court justified its conclusion by reasoning that, “The [b]iblical principle of not harming children is fully consistent with Ohio’s sentencing consideration to the same effect.”83 The fact that the judge did not impose the maximum sentence commanded by the Bible proved that she did not actually sentence the defendant based upon her religious belief.84 As is obvious from the Arnett case, courts often justify the use of religious references on the grounds of consistency with the statutory law applied in the case. That is an unnecessary and disturbing practice. In considering the defendant’s due process 78 Id. at 691 (Clay, J., dissenting). 79 Id. at 688. 80 Id. at 684. 81 Id. In discussing what constitutes reliance on religious convictions, Kent Greenawalt states, “[t]he clearest instances of reliance on religious convictions occur when the person is certain that he would make a different choice if he disregarded those convictions. . . . A person is clearly not relying on religious convictions when his choice rests firmly on independent grounds.” GREENAWALT, RELIGIOUS CONVICTIONS, supra note 2, at 36. 82 Arnett, 393 F.3d at 684. 83 Id. at 688. 84 Id. 46 NEW YORK CITY LAW REVIEW [Vol. 9:31 violation claim in Arnett, the Sixth Circuit used the Supreme Court rule that a defendant’s due process rights are violated when the death sentence is based on “factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion or political affiliation of the defendant.” 85 The Sixth Circuit then said, without any additional explanation, that the trial judge in Arnett did not base her decision on an impermissible factor, and that the factor used was not “totally irrelevant” because it was consistent with the sentencing statute.86 Nevertheless, before it reversed and remanded the case, the Sixth Circuit recognized the following: “We reach this conclusion despite the fact that reasonable minds could certainly question the propriety of the trial judge making mention of the Bible at all in her sentencing decision.”87 Whether the biblical passage quoted in an opinion is consistent or inconsistent with the statutory provision governing the case is irrelevant and, as such, should not be considered or included in a written opinion justifying a decision. Another example of the judicial use of biblical passages in criminal sentencing is the Nebraska case State v. Pattno.88 In Pattno, the defendant pled guilty to the sexual assault of a child and was sentenced to a minimum of twenty months and a maximum of five years in prison by the trial court judge.89 Before he imposed the sentence, the trial judge recited an extensive biblical scripture against homosexuality90 followed by the comment that he also con- 85 Id. at 686 (quoting Zant v. Stephens, 462 U.S. 862, 885 (1983)). 86 Id. at 686-87. 87 Id. at 688. 88 579 N.W.2d 503 (Neb. 1998). 89 Id. at 506. 90 Id. at 505-06. Ever since the creation of the world his invisible nature, namely, his external power and deity, has been clearly perceived in the things that have been made. So they are without excuse; for although they knew God they did not honor him as God or give thanks to him as God, but they became futile in their thinking and their senseless minds were darkened. Claiming to be wise, they became fools, and exchanged the glory of the immortal God for images resembling mortal man or birds or animals or reptiles. Therefore God gave them up in the lusts of their hearts to impurity, to the dishonoring of their bodies among themselves, because they exchanged the truth about God for a lie and worshiped and served the creature rather than the Creator, who is blessed for ever [sic]. Amen. For this reason God gave them up to dishonorable passions. Their women exchanged natural relations for unnatural, and the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in their own persons the due penalty for their error. 2005] QUOTING THE BIBLE 47 sidered the “nature . . . of the defendant.”91 The Nebraska Supreme Court held that a reasonable person could have questioned the trial judge’s impartiality because he relied upon his personal religious beliefs in deciding the sentence.92 The court also pointed out that the defendant was convicted of having sexual contact with a minor, which is a crime, and not of having sexual contact with a person of the same gender, which is not a crime in the state of Nebraska.93 It is not unusual for judges to inject biblical passages in their opinions as justification for supporting the harsh punishment of certain crimes such as child sexual abuse. In People v. Jagnjic, the defendant pleaded guilty to aggravated sexual abuse of a child and was sentenced to no less than five and no more than fifteen years in prison.94 However, the New York Appellate Division found that, absent a professional psychiatric evaluation, the sentence was excessive. 95 In a dissenting opinion, Justice Lupiano pointed to the heinous nature of the crime, arguing that the sentencing decision should not be disturbed and quoted a biblical passage to support that view: The condemnation of crimes against the young is deeply ingrained in the ethical and moral history of western civilization. Indeed, the bible is replete with references to this universal condemnation as, for example, the following scriptural passage concerning children—“Whosoever shall offend one of these little ones . . . it were better than a millstone were hanged about his neck, and that he were drowned in the depth of the sea” (Matthew 18:6).96 Quoting the Bible in support of a judicial decision is in clear violation of the judicial code, and it prejudices defendants not only by the content of the religious reference, but by the very fact that an irrelevant, extralegal source is used in the decision-making process. Id. (quoting the Bible). 91 Id. at 506. 92 Id. at 509. 93 Id. at 508. No statute in this state criminalizes sexual contact between consenting adults of the same gender. Thus, Pattno’s crime is that he had sexual contact with a minor; not that he had sexual contact with another male. Therefore, the biblical scripture which the judge read was not relevant to the crime to which Pattno pled guilty, and it should not have been considered by the judge in determining an appropriate sentence. Id. 94 447 N.Y.S.2d 439, 439 (App. Div. 1982). 95 See id. at 439-40. 96 Id. at 443 (Lupiano, J., dissenting). 48 NEW YORK CITY LAW REVIEW [Vol. 9:31 As the Arnett, Pattno, and Jagnjic cases illustrate, any reliance on the Bible as a direct or supporting source of authority in the decisionmaking process jeopardizes the integrity of the criminal justice system and, if not proscribed, encourages further use of the Bible by judges and other officers of the court. II. UNDERMINING THE RELIGIOUS CHARACTER OF RELIGIOUS REFERENCES There are many cases where judicial reference to a biblical passage is justified by the use of language that undermines the religious character of the text or its authority.97 This type of qualifying statement is in direct contradiction to the actual meaning of the text and to courts’ use of the Bible to support their arguments in countless cases in which the biblical references are used in their proper meaning. It is only logical to conclude that any use of biblical references in judicial decision-making, especially in written opinions, must be entirely arbitrary. On one hand, judges invoke the Bible as serious support for their propositions, and, on the other, their use of the Bible is trivialized. Judge Hildebrandt, who dissented in the State v. Arnett Ohio Court of Appeals decision finding a violation of due process, used the “mere”98 language justifica- 97 By qualifying a statement with “mere” or “merely,” courts undermine the religious value of the source from which the quotation is taken, despite the fact that the Bible is cited as the authority. This trend is consistent with the Supreme Court’s “secularization” of religious expressions. See generally Ashley M. Bell, “God Save This Honorable Court”: How Current Establishment Clause Jurisprudence Can Be Reconciled with the Secularization of Historical Religious Expressions, 50 AM. U. L. REV. 1273 (2001). Bell criticizes the Supreme Court’s secularization approach to religious expression: In addition to being an inconsistent solution, secularization does a great disservice to both religion and society. . . . Moreover, the Court seems more apt to secularize practices derived from Christianity, thus preferring Christianity over other religions. This consequence results in ‘religious divisiveness, violating the fundamental principles behind the religion clauses.’ Thus, the entire purpose of secularization backfires in its process. While attempting to neutralize religious influence, the Court in actuality prefers some religions, namely Christianity, over others. Id. at 1305-07. This critique is consistent with the famous quote of the Supreme Court that, “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.” Stone v. Graham, 449 U.S. 39, 41 (1980). 98 The Oxford English Dictionary defines “mere” and “merely” as follows: “mere- Having no greater extent, range, value, power, or importance that the designation implies; that is barely or only what it is said to be;[ ] insignificant, ordinary, foolish, inept” and “merely-Without any other quality, reason, purpose, view, etc.; only (what is referred to) and nothing more.” SHORTER OXFORD ENGLISH DICTIONARY ON HISTORICAL PRINCIPLES 1750 (5th ed. 2002). 2005] QUOTING THE BIBLE 49 tion twice in a very short opinion. Hildebrandt stated that “[t]he language quoted from the Bible merely reflects society’s interests in protecting its most vulnerable citizens, a laudable goal that is incorporated into the sentencing guidelines enacted by the General Assembly.”99 The dissent concluded, “[t]he mere citation of scriptural material in pronouncing the sentence should not be permitted to obscure the fact that the trial judge based her decision on the proper statutory considerations and that the defendant has failed to demonstrate that any prejudice resulted from the judge’s statements.”100 In reinstating the sentence, Supreme Court of Ohio Judge Cook used the “mere” language to distinguish general principles from personal beliefs: “Several state supreme courts, though they cite Bakker with approval, have declined to vacate sentences where the judge’s religious comments merely acknowledge generally accepted principles, as opposed to highly personal religious beliefs that become the basis for the sentence imposed.”101 In conclusion, the court found that “Arnett’s sentencing judge cited a religious text merely to acknowledge one of several reasons—‘one additional source’—for assigning significant weight to a legitimate statutory sentencing factor.”102 The court’s distinguishing of Bakker from Arnett is unpersuasive when it states that “Bakker merely prohibits a judge’s personal religious principles from being ‘the basis of a sentencing decision.’”103 There is no explanation of how the trial judge’s personal religious principles in Arnett were not implicated within the general principles when she turned to the book of Matthew for final help in determining the sentence. A judge’s personal perception of the meaning of biblical passages seems to be crucial in determining whether the use of the Bible is authoritative or symbolic. A judge’s use of the word “mere” often determines whether a defendant’s due process challenge succeeds. For example, in State v. Cribbs, the Tennessee Supreme Court affirmed the death sentence of a defendant convicted of premeditated first degree murder.104 On appeal, the defendant argued that the prosecution’s use of biblical references to justify the death sentence violated his due process rights.105 The state argued 99 Arnett, 1999 WL 65632, at *3 (Hildebrandt, J., dissenting). 100 Id. 101 Arnett, 724 N.E.2d at 803. 102 Id. 103 Id. at 804. 104 967 S.W.2d 773, 776 (Tenn. 1998). 105 Id. at 783. 50 NEW YORK CITY LAW REVIEW [Vol. 9:31 that although biblical quotations were impermissible, the prosecutor’s use of the language “‘whatever a man sows, so shall he reap’ was merely a metaphor for individual accountability, rather than a justification for imposition of the death penalty.”106 Noting that a biblical reference in this case was inappropriate, the court nevertheless accepted the state’s argument finding that it did not prejudice the defendant.107 The court justified its finding by calling attention to the consistency of the biblical principle with the statute: “[W]e view the comments by the prosecutor which implied that Tennessee law embraced the principle of ‘reap what you sow’ as merely an extension of that metaphor.”108 Similarly, the dissent in People v. Harlan used the “merely” phraseology to point out the trial court’s misquoting of biblical passages in the trial record. Harlan was sentenced to death for first-degree murder, but his sentence was vacated because the jury was permitted to bring “the Bible into the jury room to share with others the written Leviticus and Romans texts during the deliberation.” 109 According to the dissent, the trial court concluded that one of the jurors used Romans 13:1, “which requires that one look at government authorities as God’s representative on earth and follow their lead as agents of ‘wrath to bring punishment to the wrongdoer.’”110 The dissent did not contest that the juror used Romans 13:1, but it explained that the passage “merely states ‘Let every soul be subject to the governing authorities for there is no authority except from God and the authorities that exist are appointed by God.’”111 The judge said that the trial court actually imported the language “wrath to bring punishment to the wrongdoer” from Romans 13:4 and criticized the majority for not correcting “these overstatements.”112 The thrust of the Romans passage is an absolute submission to the authorities—and only those established by God. The trial court’s use of language from 106 Id. 107 Id. at 784. 108 Id. 109 109 P.3d 616, 632 (Colo. 2005). This case immediately caught the attention of the media. See Kirk Johnson, Colorado Court Bars Execution Because Jurors Consulted Bible, N.Y. TIMES, Mar. 29, 2005, at A1; Thane Rosenbaum, Is Court a Place for Morals?, L.A. TIMES, Mar. 30, 2005, at B11; Eric Gorski, Book, Not Faith, Broke Court Rules, DENV. POST, Mar. 30, 2005, at 1A; Suzanne Goldenberg, US Jury’s Bible Death Sentence Quashed, GUARDIAN, Mar. 30, 2005, at 11; Bible-Influenced Death Penalty Ruling Rejected, IRISH TIMES, Mar. 30, 2005, at 10. 110 Harlan, 109 P.3d at 635 (Rice, J., dissenting). 111 Id. 112 Id. 2005] QUOTING THE BIBLE 51 Romans 13:4 about the consequences of wrongdoing that would be imposed by God’s appointees neither changed the nature of the command from Romans 13:1 nor undermined the main idea of divine authority this biblical passage conveyed. The juror’s reference to Romans 13:1 alone was sufficient as an improper invocation of an extra-legal authority and cannot be undermined by the dissent’s language “merely states.” This case exemplifies how a judge’s personal view and interpretation of the Bible may affect the outcome of a case. There are many other ways courts qualify the use of religious references in order to find it justifiable or to undermine the impact of such references. One example of the characterization of the use of a biblical passage is found in Bussard v. Lockhart.113 In that case, the court denied a habeas petition for a defendant who escaped from arrest after committing murder, remaining at-large for four years.114 The prosecutor in Bussard used a biblical passage to support the inference of guilt from the escape: “Proverbs 28:1 fits it just as clear as it can be. ‘The guilty flee when no man pursueth while the righteous stand bold as a lion.’ He fled to avoid coming to trial. That shows guilt.”115 In addressing the use of the biblical passage, the court stated: The prosecutor did not use the Bible to invoke the wrath of God against Bussard or to suggest that the jury apply divine law as an alternative to the law of Arkansas. Instead, the prosecutor simply resorted to Proverbs for a more poetic version of a commonsense connection expressly recognized by Arkansas law: flight suggests consciousness of guilt.116 The court cited two cases Killcrease v. State117 and Ward v. State118 in support of the proclamation that Arkansas law expressly recognizes that flight suggests consciousness of guilt.119 A careful reader will notice, however, that only in the Killcrease case was there an issue of flight from arrest.120 Although in Ward the court discussed the fact that the defendant fled the scene upon the arrival of the police, nowhere did the court indicate that the flight was an issue in the case, nor did it state a particular rule related to flight other than “it 113 32 F.3d 322 (8th Cir. 1994). 114 Id. at 323. 115 Id. at 324. 116 Id. 117 836 S.W.2d 380, 382 (Ark. 1992) (flight from arrest corroborates other evidence of guilt). 118 816 S.W.2d 173, 175 (Ark. Ct. App. 1991) (flight from scene of crime). 119 Bussard, 32 F.3d at 324. 120 Killcrease, 836 S.W.2d at 381. 52 NEW YORK CITY LAW REVIEW [Vol. 9:31 may be considered with other evidence in determining guilt.”121 In Killcrease, the defendant was convicted of raping his minor daughter and sentenced to life in prison. On appeal he contended that the evidence of his arrest in Louisiana was irrelevant because no warrant was issued or any charges filed when he left Arkansas.122 The court held that it was up to a jury to determine whether the defendant fled to avoid arrest and that “[f]light to avoid arrest may be considered by the jury as corroboration of evidence tending to establish guilt.”123 In support of this rule, the Killcrease court cited two opinions, Riddle v. State and Ferguson v. State.124 The long line of cases using this rule leads to Stevens v. State, the first case that formulated it as follows: “Flight of the accused is admissible as a circumstance in corroboration of evidence tending to establish guilt.”125 Although many courts followed the rule as articulated in Stevens,126 the court in Ferguson changed the language by omitting the word “circumstance” from its holding that flight may “be considered as corroboration of evidence tending to establish guilt.”127 The difference between the biblical proverb used by the prosecutor in Bussard to support the demonstration of guilt and the rule as originally formulated by the Supreme Court of Arkansas is evident. The language in the proverb sends the message that fleeing is evidence of guilt, while the language of the court’s rule states that fleeing may be considered as a circumstance in corroboration of evidence tending to prove guilt. Even if one compares the modified language of the rule that fleeing suggests consciousness of guilt, the difference is still insufficient for the court to conclude that the biblical passage was a “poetic version” of the rule. The Bussard case is an illustration of the judicial slippage from biblical text to legal rules without realizing the impact such conflation actually has on the life of a human being. Concerned with the confounding of morality and law, Justice Oliver Wendell Holmes said in his famous essay The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the 121 See Ward, 816 S.W.2d at 175. 122 Killcrease, 836 S.W.2d at 382. 123 Id. 124 Id. (citing Riddle v. State, 791 S.W.2d 708 (Ark. 1990), and Ferguson v. State, 769 S.W.2d 418 (Ark. 1989)). 125 221 S.W. 186, 188 (Ark. 1920). 126 See Smith v. State, 238 S.W.2d 649, 655 (Ark. 1951); Mason v. State, 688 S.W.2d 299, 300 (Ark. 1985); Yedrysek v. State, 739 S.W.2d 672, 675 (Ark. 1987). 127 Ferguson, 769 S.W.2d at 419. 2005] QUOTING THE BIBLE 53 boundary constantly before our minds.”128 However, there are a variety of ways in which religious references are used in the decision-making process and in reasoning justifying decisions. Courts quote the Bible in order to support their propositions and to show that they are consistent with traditional morality. They sometimes use biblical passages as metaphors or to illuminate a particular common law principle. The Bible often becomes part of the historical explanation of a particular law or practice. In some instances, a biblical passage appears as a rule upon which a decision is based or accompanies a common law or statutory rule as a confirmation of the consistency of our law. The next part will show different ways in which the Bible is used in judicial opinions. III. QUOTING THE BIBLE FOR VARIOUS PURPOSES In some instances, judges use the Bible to express their personal religious and moral beliefs, and former Chief Justice Moore of the Supreme Court of Alabama may be the best example of this practice. In Ex parte H.H., a lesbian ex-wife was denied custody of her children despite the fact that there was evidence of her exhusband’s excessive disciplinary punishment of children.129 Justice Moore’s special concurring opinion is an illustration of inappropriate judicial decision-making using the Bible as law. He starts his opinion with a strong statement: [T]he homosexual conduct of a parent—conduct involving a sexual relationship between two persons of the same gender— creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.130 Justice Moore’s perspective that a parent’s homosexual conduct is unfit per se is founded entirely on religious teachings against samesex sexual relationships.131 Unlike the gender-based tender years presumption that the Supreme Court of Alabama found unconstitutional, 132 the sexual orientation-based presumption is still valid in some states.133 The main justification for the per se rule is ex- 128 Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459-60 (1897). 129 830 So. 2d 21, 25-26 (Ala. 2002). 130 Id. at 26. 131 See Romans 1:18-32 (New International). 132 See Ex parte Devine, 398 So. 2d 686, 696-97 (Ala. 1981). 133 See, e.g., Roe v. Roe, 324 S.E.2d 691 (Va. 1985). Some courts require that a 54 NEW YORK CITY LAW REVIEW [Vol. 9:31 plained by Justice Moore: “Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated.”134 Justice Moore finds support for his proposition in Blackstone’s Commentaries135 and proceeds to quote from the Bible and various other sources condemning homosexuality.136 He concludes his opinion with the following words: “The common law adopted in this State and upon which our laws are premised likewise declares homosexuality to be detestable and an abominable sin. Homosexual conduct by its very nature is immoral, and its consequences are inherently destructive to the natural order of society.”137 By quoting biblical passages in support of their decisions, judges like Justice Moore perpetuate homophobia and the legitimacy of laws based on religious morality138 without any concern for the parties involved and the actual legal standards governing our society. One of those standards directly disregarded by Justice Moore in the Ex parte H.H. case is the best-interest-of-the-child standard. This case demonstrates the judicial misconduct present in invoking personal religious beliefs and morality as a basis of judgment. It is most interesting that Justice Moore was never disciplined for basing his decisions on his personal religious beliefs, but was actually removed when he refused to comply with a court order to remove the Ten Commandments monument he displayed in the rotunda of the state judicial building.139 In commenting on the controversy around Justice Moore, one author contrasted the invisibility of the judicial use of religious references to the physical appearance of impropriety, making the following point: parent involved in a same-sex relationship prove absence of harm. See, e.g., Thigpen v. Carpenter, 730 S.W.2d 510, 513-14 (Ark. 1987). Other courts use a “nexus test” requiring only proof that a parent’s sexual conduct will have or has had an adverse impact. See, e.g., A.C. v. C.B., 829 P.2d 660, 664 (N.M. Ct. App. 1992). 134 Ex parte H.H., 830 So. 2d at 26. 135 Id. at 32, 34, 37. 136 Id. at 33-37 (quoting biblical passages Genesis 1:27, 2:24; Leviticus 20:13). 137 Id. at 38. 138 See Bowers v. Hardwick, 478 U.S. 186 (1986). Upholding a Georgia sodomy statute, the Court stated that “[p]roscriptions against that conduct have ancient roots,” referring to Judeo-Christian moral standards. Id. at 192. Concurring Justice Burger reiterated that, “Condemnation of those practices is firmly rooted in Judeao-Christian [sic] moral and ethical standards,” id. at 196, validating the state’s invocation of the biblical books of Leviticus and Romans to justify the sodomy statute, id. at 211 (Blackmun, J. dissenting). 139 See Glassroth v. Moore, 278 F. Supp. 2d 1272, 1275 (M.D. Ala. 2003), aff’d 335 F.3d 1282 (11th Cir. 2003), cert. denied 540 U.S. 1000 (2003). 2005] QUOTING THE BIBLE 55 While the plaintiffs, media, and judicial ethicists were earnestly setting their sights on this highly conspicuous jurist, they were devoting little if any attention to the question of the proper relationship between religion and the decisions judges actually render, including religiously devout judges like Chief Justice Moore. To be sure, the Chief Justice’s fundamental mistake, at least from a job retention perspective, appears not to have been his firm and guiding belief that God’s law ought to inform human law, or even his clear expression of that belief in judicial opinions, which is to say that he was not and would not obviously have been removed from office for actually implementing and manifesting his religious beliefs in his judicial capacity. His apparent mistake, instead, was to manifest them by erecting a granite monument in his administrative, and in many respects less important or less influential, role.140 Often courts use biblical references to explain the historical background of a legal concept. For example, tracing the origin of an in rem forfeiture proceeding by the government against the property involved in or acquired by crime, the Supreme Court cited Exodus 21:28: “[i]f an ox gore a man or a woman, and they die, he shall be stoned and his flesh shall not be eaten.”141 After locating the original source of this legal concept in the Bible, the Court traced the development of the forfeiture further to the common law concept of “deodand,” citing to Blackstone’s Commentaries on the Laws of England and Holmes’s The Common Law.142 While it is a fact that Blackstone cited Exodus in his Commentaries,143 Holmes and other authors did not go that far.144 Other federal and state courts have also used the biblical passage Exodus 21:28 to explain not only the origin of the law of forfeiture, but also other tort actions, despite the availability of other sources of legal history upon which American law is actually founded.145 140 Idleman, Concealment, supra note 2, at 517-18. 141 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 681 n.17 (1974). See also United States v. Bajakajian, 524 U.S. 321, 330 n.5 (1998). 142 Calero-Toledo, 416 U.S. at 681 (citing to “O. Holmes, the Common Law, c. 1 (1881)” and “1. W. Blackstone, Commentaries *300”). See also Bajakajian, 524 U.S. at 330 (citing to “1 W. Blackstone, Commentaries on the Laws of England 290-292 (1765); O. Holmes, The Common Law 10-13, 23-27 (M. Howe ed. 1963)”). 143 WILLIAM BLACKSTONE, 1 COMMENTARIES *291. 144 See OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1-38 (45th printing 1923, 1909, 1881); FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW, 473-74 (2d ed. 1923). 145 Federal courts citing or quoting Exodus 21:28: United States v. All Funds in Account Nos. 747.034/278, 295 F.3d 23, 25 (D.C. Cir. 2002); United States v. Gilbert, 244 F.3d 888, 918 (11th Cir. 2001); United States v. One Parcel Prop., 74 F.3d 1165, 1168 (11th Cir. 1996); United States v. 785 St. Nicholas Ave., 983 F.2d 396, 401 (2d 56 NEW YORK CITY LAW REVIEW [Vol. 9:31 The controversial Justice Moore of Alabama provides another example of biblical invocation in support of a historical analysis of a particular concept. Dissenting in Yates v. El Bethel Primitive Baptist Church, he engaged in a historical discussion of the concept of separation between the church and state, quoting from numerous biblical passages.146 Other judges also turn to the Bible in order to solidify the idea that a particular law is rooted in history. In a case involving a defamation suit, the West Virginia Supreme Court used Exodus 20:16, Deuteronomy 19:16-21, and Ecclesiastes 7:1 as historical evidence that slander was prohibited since the beginning of time.147 After quoting the Bible as its first source, the court proceeded by listing numerous legal sources on defamation, libel, and slander. The historical concept of subjecting “illegitimate” children to legal discrimination is also explained using Deuteronomy 23:2: “Throughout history, illegitimate children were precluded from, among other legal rights, entering certain professions. The Book of Deuteronomy states: a bastard shall not enter into the congregation of the Lord; even to this tenth generation shall he not enter into the congregation of the Lord. Deut. 23:2.”148 Supreme Court justices join lower court judges in quoting the Bible when they resort to providing a historical review of certain Cir. 1993); United States v. Seifuddin, 820 F.2d 1074, 1076 (9th Cir. 1987); United States v. Sandini, 816 F.2d 869, 872 (3d Cir. 1987); United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1218 n.4 (10th Cir. 1986); United States v. One 1976 Mercedes Benz 280S, 618 F.2d 453, 454 (7th Cir. 1980); United States v. Funds from Prudential Sec., 362 F. Supp. 2d 75, 79 (D.C. Cir. 2005); United States. v. Croce, 334 F. Supp. 2d 781, 786 n.13 (E.D. Pa. 2004); United States v. Funds From Prudential Sec., 300 F. Supp. 2d 99, 100 n.1 (D.C. Cir. 2004); United States v. 38 Whalers Cove Drive, 747 F. Supp. 173, 177 (E.D.N.Y. 1990); United States v. Haro, 685 F. Supp. 1468, 1473 (E.D. Wis. 1988). State courts citing or quoting Exodus 21:28: Allen v. State, 605 A.2d 994, 998 n.3 (Md. Ct. Spec. App. 1992); Prop. Clerk of N.Y. City Police Dep’t v. Molomo, 583 N.Y.S.2d 251, 253 (App. Div. 1992); Duren v. Kunkel, 814 S.W.2d 935, 937 n.3 (Mo. 1991); Commonwealth v. One 1988 Ford Coupe, 574 A.2d 631, 636 (Pa. Super. Ct. 1990); Holtzman v. Samuel, 495 N.Y.S.2d 583, 585 n.1 (Sup. Ct. 1985); Dist. Attorney of Queens County v. McAuliffe, 493 N.Y.S.2d 406, 411 (Sup. Ct. 1985); Dir. of Fin. v. Cole, 465 A.2d 450, 456 n.2 (Md. 1983); New Jersey v. One 1977 Dodge Van, 397 A.2d 733, 734 n.1 (Middlesex County Ct. 1979); Prince George’s County. v. Blue Bird Cab Co., 284 A.2d 203, 205 (Md. 1971); Magrine v. Spector, 241 A.2d 637, 639 n.2 (N.J. Super. Ct. App. Div. 1968); Robidoux v. Busch, 400 S.W.2d 631, 639 (Mo. Ct. App. 1966); Johnson v. Olson, 67 P.2d 422, 425 (Kan. 1937). 146 847 So. 2d 331, 350-53 (Ala. 2002) (quoting the following chapters from King James: 2 Chronicles 26:16-21, 2 Chronicles 26:18, 1 Samuel 13:13-14, Ezra 7:21-24, Matthew 22:21, Matthew 18:15-20, Matthew 16:19, 1 Corinthians 6). 147 Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 76 (W. Va. 1984). 148 Miscovich v. Miscovich, 688 A.2d 726, 728 n.2 (Pa. Super. Ct. 1997). See also Kohler v. Bleem, 654 A.2d 569, 572 n.1 (Pa. Super. Ct. 1995). 2005] QUOTING THE BIBLE 57 legal principles. While such biblical references are usually placed in footnotes, occasionally they are prominently displayed in the main body of the opinion. For example, in Payne v. Tennessee, holding that the Eighth Amendment does not prohibit the admission of victim impact evidence in jury sentencing,149 Chief Justice Rehnquist quoted Exodus 21:22-23, proscribing “[a]n eye for an eye, a tooth for a tooth” to demonstrate how the guiding principles in criminal sentencing varied over time.150 In his review of the historical principles guiding criminal sentencing, Justice Rehnquist started with the Bible before he moved on to the English law and legislative enactments.151 Sometimes, a court quotes the Bible as support for a proposition using a “cf.” as a citation signal. “Cf.” is an abbreviation for the Latin word “confer,” which means “compare.”152 Black’s Law Dictionary states, “As a citation signal, cf. directs the reader’s attention to another authority or section of the work in which contrasting, analogous, or explanatory statements may be found.”153 Such support was used in the United States v. Ryan case by a dissenting judge to interpret the statutory meaning of “the building used . . . in . . . any activity affecting interstate . . . commerce.”154 The dissenting judge argued that the statutory requirement of “activity” was missing in respect to the building in question.155 The dissent cited the Bible, stating, “The building here was just cumbering the ground. Cf. Luke 13:7 (King James). It was not being ‘used’ in any ‘activity.’” 156 The biblical passage cited states: “So he said to the man who took care of the vineyard, ‘For three years now I’ve been coming to look for fruit on this fig tree and haven’t found any. Cut it down! Why should it use up the soil?’”157 The judge used this citation assuming the reader’s familiarity with a biblical passage of this length and on this particular topic, which was listed under the chapter “Repent or Perish” in Luke. This assumption seems to be a long stretch if the extralegal authority was used as an analogy to show that there was no use for the building in question. Another example of the use of a biblical citation with a cf. citation signal is in the Conklin v. Anne Arundel County Bd. of Educ. 149 501 U.S. 808, 827 (1991). 150 Id. at 819. 151 Id. 152 BLACK’S LAW DICTIONARY 243 (8th ed. 2004). 153 Id. 154 41 F.3d 361, 369 (8th Cir. 1994) (Arnold, C.J., dissenting). 155 Id. 156 Id. 157 Luke 13:7 (New International). 58 NEW YORK CITY LAW REVIEW [Vol. 9:31 case.158 Parents of a dyslexic child challenged the county’s program as not being in compliance with the Education of the Handicapped Act.159 In a footnote, discussing the fact that the board took advantage of the child’s temporary progress (which was actually due to private tutoring) to show its compliance with the statute, the court quoted this passage from the Bible when it said: “Annual grade promotion may, as a result, be a reasonable barometer for measuring the progress that this handicapped child can achieve in the coming years. . . . Cf. Matthew 26:52 (King James) (‘[A]ll they that take the sword shall perish with the sword.’).”160 The court took the board’s argument and created a standard to which the board should adhere in the future, consisting of annual grade promotion and additional tutoring provided by the board.161 The court assumed that the reader was familiar with the biblical passage it partially quoted. The passage is part of the chapter on Jesus’s arrest and its idea only becomes clear if one knows its entire context: Then the men stepped forward, seized Jesus and arrested him. With that, one of Jesus’ companions reached for his sword, drew it out and struck the servant of the high priest, cutting off his ear. “Put your sword back in its place,” Jesus said to him, “for all who draw the sword will die by the sword.”162 The fact that judges resort to citing the Bible in support of their arguments shows the privilege that Christianity enjoys in our society. The invisibility of that privilege is enhanced by the judges’ assumptions of their audience’s familiarity with the Bible and by their disregard of the need for a full explanation of a cited source and its relation to the proposition at hand. Courts also use the Bible to explain the origins of a word. For example, in Bok v. McCaughn, the court explained that “[c]harity, derived from the Latin caritas, originally meant love. In the thirteenth chapter of first Corinthians the revised version uses the word ‘love’ in defining the third of the three cardinal virtues, which, in King James’ version read ‘Faith, Hope and Charity.’”163 The term “sodomy” also finds its origin in the Bible, as the court noted in Stone v. Wainwright, citing Genesis 13:13 and 18:20 and quoting Leviticus 18:22: “Thou shalt not lie with mankind, as with womankind: 158 946 F.2d 306 (4th Cir. 1991). 159 Id. at 309. 160 Id. at 315 n.6. 161 Id. 162 Matthew 26:50-52 (New International). 163 42 F.2d 616, 618-19 (3d Cir. 1930). 2005] QUOTING THE BIBLE 59 it is abomination.”164 Similarly, Justice Breyer quoted the Bible to explain the origin of the word “carries” in a drug trafficking case where the statute included the phrase “carries a firearm.”165 Arguing that the word includes “conveyance in a vehicle,” he said, “[t]he greatest of writers have used the word with this meaning. See, e.g., The King James Bible, 2 Kings 9:28 (‘[H]is servants carried him in a chariot to Jerusalem’); id., Isaiah 30:6 (‘[T]hey will carry their riches upon the shoulders of young asses’).”166 The Bible has also been called upon to determine the meaning of seemingly simple words such as “daytime.” In a criminal prosecution, a defendant moved to quash a search warrant because it was not served during daytime as required by law.167 He claimed that the warrant was served at 7:15 p.m. and that the sun set at 6:53 p.m. on that day.168 Before citing Shakespeare, Webster’s Dictionary, and finally federal and state courts, the court resorted to the Bible as its first source of interpretation: “In the Bible, Genesis 1:5, we find ‘And God called the light day and the darkness he called night.’”169 The court dismissed the motion to quash the warrant, concluding that it had no merit because of the general rule that daytime is determined by the presence of light.170 While today’s courts are comfortable using biblical passage as a rule, the courts in the past refrained from actually quoting the Bible. For example, in a famous 1872 case, the Supreme Court held constitutional Illinois’s refusal to admit a woman to practice law, stating, “[t]he paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”171 The Court did not specify what exact legal source it was referring to when it invoked “the law of the Creator.” 172 Modern courts, however, are more explicit in the invoca- 164 478 F.2d 390, 393 n. 14 (5th Cir. 1973). The text of the cited passages state, “Now the men of Sodom were wicked and were sinning greatly against the LORD,” Genesis 13:13 (New International), and “Then the LORD said, ‘The outcry against Sodom and Gomorrah is so great and their sin so grievous,’” Genesis 18:20 (New International). 165 Muscarello v. United States, 524 U.S. 125, 128-29 (1998). 166 Id. 167 United States v. Liebrich, 55 F.2d 341, 342 (M.D. Pa. 1932). 168 Id. 169 Id. 170 Id. at 343 (stating “it is reasonable to hold that it is daytime for at least thirty minutes after the time when the sun sets, and it is nighttime from then until thirty minutes before the time when the sun rises”). 171 Bradwell v. State, 83 U.S. 130, 141 (1872). 172 Id. 60 NEW YORK CITY LAW REVIEW [Vol. 9:31 tion of biblical passages when formulating rules upon which they decide cases. The Second Circuit, in a suit for a securities violation, discussed the doctrine of “offensive collateral estoppel (more recently called offensive issue preclusion),” pointing to judicial efficiency as a primary “virtue” of the doctrine.173 It then indicated its disadvantage: Its virtues do not come without a price, however. Just as occasionally ‘the race is not to the swift, nor the battle to the strong . . . but time and chance happeneth to them all,’ Ecclesiastes 9:11 (King James ed.), so too the results of an earlier resolution of an issue may simply be wrong.174 Some courts, when formulating standards, go directly to the Bible for support. In a dual adultery divorce suit, the husband filed a counterclaim alleging that the wife’s lesbian relationship constituted adultery.175 The court started its inquiry this way: To better understand the underlying issue it is helpful to briefly review both the legal and social standards and to distinguish between adultery as a crime as opposed to a private civil wrong. The [S]eventh [C]ommandment states that “Thou shall not commit adultery” Exodus 20:14. A biblical definition of “Adultery” is “the lying with a woman married to a husband.” See Deuteronomy 22:22 and Leviticus, 20:10. . . . If a married man be “lying with a woman not betrothed” the biblical crime was fornication and punishment by a fine of 50 shekels of silver. Deuteronomy 22:29 (The commentators generally opine that even the thought of adultery was an offense under the biblical code, an issue which we need not deal with today.)176 After the court quoted the above biblical passages, it proceeded with common law and New Jersey statutory treatment of adultery. Despite announcing that it would review “legal and social standards,” the court started with religious moral authorities on the issue, assuming that religious morality is a synonym for a social standard. These are just some of the various ways in which courts use biblical references in written opinions. The next part of this Article will demonstrate the many different forms in which a particular biblical passage enters judicial opinions. 173 Sec. Exch. Comm’n v. Monarch Funding Corp., 192 F.3d 295, 303 (2d Cir. 1999). 174 Id. at 303-04. See also Liberty Mut. Ins. Co. v. Fag Bearings Corp., 335 F.3d 752, 763 (8th Cir. 2003) (quoting the same biblical passage from Monarch Funding, 192 F.3d at 303-04). 175 S.B. v. S.J.B., 609 A.2d 124, 124 (N.J. Super. Ct. Ch. 1992). 176 Id. at 125. 2005] QUOTING THE BIBLE 61 IV. REFERENCING “NO MAN CAN SERVE TWO MASTERS”177 While the Supreme Court has never cited either Matthew or Luke, federal and state courts prominently do so when using the phrase “no man can serve two masters” to express the rule against an attorney’s dual representation.178 In Hartford Accident & Indemnity Co. v. Foster, a state court invoked the following sources of authority: “The [b]iblical mandate that ‘No man can serve two masters’ has its modern-day application in cases of this nature. See Canon 6, Canons of Professional Ethics, 31 F.S.A.”179 Canon 6 of Professional Ethics, entitled Adverse Influences and Conflicting Interests, imposes a duty on a lawyer to disclose to a client any potential interest that might adversely affect the client.180 Contrary to biblical mandate, Canon 6 does not prohibit a lawyer from representing two clients, but instead permits such representation by express consent of all parties after full disclosure of the facts.181 The invocation of a biblical mandate in this case is unclear because the court held that the insured who was represented by the insurer’s attorney was not harmed by any breach of fiduciary duty in failing to provide information about settlement offers.182 Thus it follows that not only can a man serve two masters, but even when such servitude constitutes a breach of fiduciary duty, the attorney will only be liable when the plaintiff who is suing suffered harm. Some judges are willing to disregard existing legal standards, instead quoting biblical teaching as a primary source of the authority for their decision. In People v. Williams, a case charging a husband and wife for sex offenses upon their minor adopted child, a court held that there was no conflict of interest that would make joint representation of the defendant and codefendant improper. 183 Dissenting in an extensive opinion, Justice Pincham stated: Civilization’s most sacred, learned, dedicated and staunchest advocate of all times, centuries ago, admonished: “No one can serve two masters; for either he will hate the one and love the other, or he will hold to the one and despise the other.” The advocate was the Christ Jesus; the admonition was to his disci- 177 See infra Appendix. 178 See infra Appendix. 179 528 So. 2d 255, 277 (Miss. 1988) (citing Spadaro v. Palmisano, 109 So. 2d 418 (Fla. App. 1959)). 180 CANONS OF PROF’L ETHICS Canon 6 (2004). 181 Id. 182 Foster, 528 So. 2d at 276. 183 538 N.E.2d 564, 566 (Ill. App. Ct. 1989). 62 NEW YORK CITY LAW REVIEW [Vol. 9:31 ples and the multitude during His Sermon on the Mount; the admonition is cited in the most dynamic, accurate and prestigious of all law books, The Holy Bible, at Matthews the 6th Chapter and the 24th Verse.184 After citing the highest authority to support his argument, the dissenting judge then proceeded to cite Canon 5 (5-1, 5-14, 5-15, 5- 17) of The Model Code of Professional Responsibility of the American Bar Association.185 A significant number of cases state that the biblical mandate “no person can serve two masters” is consistent with the Restatement of the Law on Agency and reflects the current legal framework within which courts operate. Contrary to what many judges state in their opinions, however, the Restatement of the Law of Agency does not prohibit dual servitude. The rules regulating the relation of agency explicitly provide that “[a] person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.”186 The comments for this section further elaborate on this issue, allowing for a servant to be employed by joint masters.187 The most important issue in the servant’s relationship with a master is the master’s consent to service188 and not, as the courts suggest, whether there is one or multiple masters. The same is true for the law governing lawyers. The Restatement of the Law Governing Lawyers clearly establishes that a lawyer may not represent a client if the representation involves a conflict of interest189 unless the client consents to such representation.190 Consent, and not the number of clients or masters, is the key element in a lawyer’s representation of a single or multiple clients in civil and criminal litigation.191 Similarly, the ABA Model of Professional Conduct Rule 1.13 allows an attorney to represent an organization and “its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.”192 It is also worth noting that the Federal Rules of Civil Procedure include one of the most important rules allowing for 184 Id. at 569 (Pincham, J., dissenting). 185 Id. at 569-570. 186 RESTATEMENT (SECOND) OF AGENCY § 226 (1958). 187 Id. § 226(b). 188 Id. § 221. 189 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 (2001). 190 Id. § 122. 191 See id. §§ 128, 129. 192 MODEL RULES OF PROF’L CONDUCT R. 1.13(g) (2004). 2005] QUOTING THE BIBLE 63 multiple representation: Rule 23 governing class action.193 The Restatement of the Law of Agency and the Law Governing Lawyers, together with the ABA Rules of Conduct, represent legal authorities upon which judges should rely. Any extralegal authorities, especially those that conflict with legal standards established by the accepted authoritative legal sources of statutory or common law, are constitutionally suspect and their invocation in judicial opinions is unsound. V. USING OTHER RELIGIOUS REFERENCES While citations to the King James version of the Bible are numerous, courts rarely use other religious authorities. A search for the word “Talmud,” a collection of Jewish civil and canonical laws,194 returns only three results in the Supreme Court cases database in Westlaw: County of Allegheny v. ACLU,195 School District of Abington Township, Pennsylvania. v. Schempp,196 and Permoli v. Municipality No. 1 of New Orleans.197 The word “Torah,” the first five books of the Old Testament, appears only five times in Supreme Court opinions: Board of Education of Kiryas Joel Village School District v. Grumet,198 Lee v. Weisman,199 County of Allegheny v. ACLU,200 Hernandez v. Commissioner of Internal Revenue,201 and Miranda v. Arizona. 202 The word “Halakhah,” a Jewish law book consisting of the 193 FED. R. CIV. P. 23(g). 194 BLACK’S LAW DICTIONARY 1494 (8th ed. 2004). 195 492 U.S. at 583-84 (using the Talmud in describing certain Jewish practices). 196 374 U.S. 203, 273 (1963). “There was ample precedent, too, for Theodore Roosevelt’s declaration that in the interest of ‘absolutely nonsectarian public schools’ it was ‘not our business to have the Protestant Bible or the Catholic Vulgate or the Talmud read in those schools.’” Id. (citation omitted). 197 44 U.S. 589, 604-05 (1845). “In the case of The Commonwealth v. Abram Wolf, 3 Serg. & Rawle, 48, Chief Justice Tilghman affirmed the validity of an ordinance of Philadelphia, imposing a fine for working on a Sunday, against a Jew; though under the teachings of the Jewish Talmud and the Rabbinical Constitutions, the Jew deemed Saturday as the Jewish Sabbath, and felt it both as a privilege and a duty to labour for six days, and to rest on the seventh, or Saturday.” Id. 198 512 U.S. 687, 691 (1994) (part of the facts). 199 505 U.S. 577, 639 (1992) (Scalia, J., dissenting). 200 492 U.S. at 584 n.24. “A Torah scroll—which contains the five Books of Moses—must be buried in a special manner when it is no longer usable. App. 237- 238.” Id. 201 490 U.S. 680, 701 (1989). “We also assume for purposes of argument that the IRS also allows taxpayers to deduct ‘specified payments for attendance at High Holy Day services, for tithes, for torah readings and for memorial plaques.’” Id. (quoting Foley v. Comm’r of Internal Revenue, 844 F.2d 94, 96 (1988)). 202 384 U.S. 436, 458 n.27 (1966). “Thirteenth century commentators found an analogue to the privilege grounded in the Bible. ‘To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.’ 64 NEW YORK CITY LAW REVIEW [Vol. 9:31 Torah and the law instituted by the rabbi, appears in only one opinion: Garrity v. New Jersey.203 The Supreme Court used the words “Koran,” “Kuran,” “Qur’an,” or “Qor’an,” a Muslim book of revelations, in Zelman v. Simmons-Harris,204 O’Lone v. Estate of Shabazz,205 Clay v. United States,206 and Lemon v. Kurtzman.207 The Book of Mormon, a Mormon scripture, is cited in two decisions: Zelman v. Simmons-Harris208 and Hernandez v. Commissioner of Internal Revenue.209 Statistical evidence demonstrates that the appearance of references from Jewish or Muslim religious authorities is rare. Federal and U.S. Supreme Court case law mentions “Talmud” in 63 cases, “Torah” in 155 and “Halakhah” in 4 cases.210 The same search in the state case law database produces “Talmud” in 151 cases, “Torah” in 306 cases, and “Halakhah” in 2 cases, a pale comparison with the words “King James,” which produce 599 cases in state case law, and the word “Bible,” which is not possible to search due to an extremely high number of cases in which it appears.211 The various versions of the word “Koran” produce 499 cases in federal law and 349 cases in state law, but in most of those cases the word actually appears as a personal name.212 One needs go no farther than statistical data to conclude that the Bible is by far the most bellowed religious authority that judges use in their decision-making process and their written opinions. The apparent disparity in the use of different religious sources re- Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, ¶ 6, III Yale Judaica Series 52-53.” Id. 203 385 U.S. 493, 497 n.5 (1967) (comparing Jewish law with the Fifth Amendment). 204 536 U.S. 639, 713 n.24 (2002) (quoting the New Testament, the Book of Mormon, the Pentateuch, and the Koran). 205 482 U.S. 342, 345 (1987). “Jumu’ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. See Koran 62:9-10; Brief for Imam Jamil Abdullah Al-Amin et al. as Amici Curiae 18-31.” Id. 206 403 U.S. 698, 708 n.2, 709 (1971) (quoting the Koran 61:10-13 to define “jihad as an injunction to the believers to war against non-believers”). 207 403 U.S. 602, 630-31 (1971) (Douglas, J., concurring). “The advantages of sectarian education relate solely to religious or doctrinal matters. They give the church the opportunity to indoctrinate its creed delicately and indirectly, or massively through doctrinal courses. Many nations follow that course: Moslem nations teach the Koran in their schools . . . .” Id. 208 Zelman, 536 U.S at 713 n.24. 209 490 U.S. at 709. 210 Westlaw search performed on February 10, 2006. 211 Westlaw search performed on February 10, 2006. 212 Westlaw search performed on February 10, 2006. 2005] QUOTING THE BIBLE 65 affirms the privileged status that Christianity enjoys in the United States. It is a constant reminder of the composition of the judiciary and the lack of diversity that contributes to the ongoing proliferation of the use of biblical references by the courts. CONCLUSION Language analysts recognize that the Bible had a substantial impact on standard English language.213 Many biblical passages, having been read at home and in church for generations, entered the popular linguistic milieu of the majority of Americans. However, not all of them became independent lexical units: A usage has to have achieved some degree of linguistic autonomy; it must be capable of being meaningful outside of its original biblical context, usable by English speakers who do not read (or even know) the Bible as well as those who do. (The same point applies to expressions derived from Shakespeare or any other author.) . . . A usage that does not meet this criterion is really only a quotation.214 One of the standard English expressions derived from the King James version of St. Matthew’s Gospel is, “No man can serve two masters.”215 However, courts continue to quote the Bible when referring to this expression. The variety of ways in which courts use biblical passages from Matthew and Luke is impressive.216 If the biblical passage that “no man can serve two masters” is part of folk wisdom, there would seem to be no need to quote the Bible. If, on the other hand, it is important to cite the ultimate source of this proverb, referencing the Bible seems logical. While this biblical quotation and citation to Matthew or Luke by courts may be trivial, the continuous use of the Bible by judges to support their arguments in written opinions is unjustified and should be barred. The Bible contains many passages as simple as the one above, but the scope of their impact on decision-making is impermissibly broad, including such decisions as life or death in capital cases. The arbitrariness of judicial choice to use some biblical passages as traditional folk expressions and to quote others as authoritative sources 213 CRYSTAL, supra note 71, at 274. See also Ashburn, supra note 2, at 343-47 (citing examples of courts using aphorisms from Jewish law). 214 CRYSTAL, supra note 71, at 276. “The King James Bible . . . has contributed far more to English in the way of idiomatic or quasi-proverbial expressions than any other literary source. . . . Matthew’s Gospel alone, for example, yields over forty locutions which, directly or indirectly, are part of Modern English.” Id. 215 Id. at 277. 216 See infra Appendix. 66 NEW YORK CITY LAW REVIEW [Vol. 9:31 is analogous to the arbitrariness in which some biblical passages entered the everyday speech.217 Additionally, the use of the same biblical passage as a folk expression by some courts and as a biblical quote by the others creates a sense of arbitrariness and subjectivity, bringing into question judicial impartiality. The use of religious references in judicial decision-making is not rare and cannot be underestimated. The numerous ways in which the Bible finds its way into judicial opinions are a direct result of judges’ willingness to disregard the rules of judicial conduct and apparent constitutional violations stemming from such misuse. Since there is no bright line between a common expression such as “eye for eye, tooth for tooth”218 and the biblical mandate “[i]f anyone takes the life of a human being, he must be put to death,”219 courts should never use either text, especially not during a sentencing phase. Courts should be prohibited from using religious references in judicial decision-making because any reliance on extralegal sources of authority is contrary to the basic principles of the American justice system. Using religious references in judicial opinions is an impermissible exercise of a privilege that coerces the minority to accept the norms of the majority. Whether disguised as morals, proverbs, principles, tradition, or history, religious references undermine judicial integrity and impartiality. Long ago, Justice Holmes expressed one of the most creative ideas in respect to delineating morality and law. Although his idea may sound radical today to moderate and conservative proponents of the use of religion in decision-making, it is one that should resonate with any person who is genuinely concerned with the American justice system: For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.220 217 See CRYSTAL, supra note 71, at 278. What is really intriguing, of course, is why some expressions entered English in this way, and others did not. Why did such similes as wise as serpents or harmless as doves ([Matthew] 10:16) not become everyday phrases? As always, when we consider lexical innovation, the bigger puzzle is to explain why so many apparently vivid or useful items did not appeal. Id. See also BARTH D. EHRMAN, MISQUOTING JESUS: THE STORY BEHIND WHO CHANGED THE BIBLE AND WHY (2005) (discussing intentional and accidental alterations of the Bible made by translators throughout history). 218 Leviticus 24:20 (New International). 219 Leviticus 24:17 (New International). 220 Holmes, The Path of the Law, supra note 128, at 464. 2005] QUOTING THE BIBLE 67 APPENDIX CASES USING “NO MAN CAN SERVE TWO MASTERS”221 “No one can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Money.” Matthew 6:24 (New International). “No servant can serve two masters. Either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve both God and Money.” Luke 16:13 (New International). Terms Used by Courts to Refer to “No Man Can Serve Two Masters” Admonition Familiar scriptural quotation Ancient admonition Fundamental law Ancient axiom Fundamental rule Ancient injunction Fundamental truth Ancient maxim Fundamental proposition Ancient principle General rule Ancient truth General principle Authority of Holy Writ Good Authority Authoritative declaration Gospel Axiom Hallowed petition Biblical admonition High authority Biblical advice Highest Authority has said Biblical expression Infallible declaration Biblical doctrine Biblical mandate Infallible truth Biblical quote Injunction Biblical teaching Jesus said Christ said Law for two thousand years Christian morality Legal maxim Centuries-old scriptural passage Maxim Common experience Moral maxim Declaration Moral rule Divine declaration Old adage Divine injunction Old as Holy Writ Divine precept Old principle Doctrine of the Holy Writ Old proverb Divine saying Philosophy Eternal truth Philosophy of the Galilean Expression Phrase from the Bible Fact Principle 221 Westlaw search performed on February 10, 2006 using a sesarch phrase “can serve two masters.” 68 NEW YORK CITY LAW REVIEW [Vol. 9:31 Proposition of the Highest and best Scriptural references authority Scriptural teaching Proverb Statement Public policy rule Theory Quoted from the Bible Truth Rule Truth of the biblical admonition Rule of the moral law Truth of the Scriptural injunction Rule of law Unanimous verdict of mankind Saying Universal moral rule Scriptural maxim Utterance of the divine Nazarene Scriptural pronouncement Very high authority has said Scriptural quotation Wisdom of the ages SUPREME COURT CASES NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994) (Ginsburg, J., dissenting) (“No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.”) Sec. & Exch. Comm’n v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 197 n.50 (1963) (Justice Goldberg quoting from United States v. Miss. Valley Generating Co., 364 U.S. 520, 550 n.14 (1961)) United States v. Miss. Valley Generating Co., 364 U.S. 520, 550 n.14 (1961) (Warren, J.) (“The reason of the rule inhibiting a party who occupies confidential and fiduciary relations toward another from assuming antagonistic positions to his principal in matters involving the subject matter of the trust is sometimes said to rest in a sound public policy, but it also is justified in a recognition of the authoritative declaration that no man can serve two masters; and considering that human nature must be dealt with, the rule does not stop with actual violations of such trust relations, but includes within its purpose the removal of any temptation to violate them.” (quoting Mich. Steel Box Co. v. United States, 49 Ct. Cl. 421, 439 (1914))) Supreme Lodge Knights of Pythias v. Withers, 177 U.S. 260, 269 (1900) (Brown, J.) (“But if the insured is to be now bound as having thus contracted, there must be mutuality in the contract. No man can serve two masters.”) 2005] QUOTING THE BIBLE 69 CITING TO MATTHEW Federal Court Cases Freund v. Butterworth, 117 F.3d 1543, 1572 n.67 (11th Cir. 1997) United States v. Mett, 65 F.3d 1531, 1538 (9th Cir. 1995) Sanjour v. EPA, 56 F.3d 85, 100-01 (D.C. Cir. 1995) Chapman v. Klemick, 3 F.3d 1508, 1512 (11th Cir. 1993) Sanjour v. EPA, 984 F.2d 434, 447 (D.C. Cir. 1993) United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1247 (9th Cir. 1989) United States v. Gambino, 864 F.2d 1064, 1074-1075 n.1 (3d Cir. 1988) U.S. Fid. & Guar. Co. v. Louis A. Roser Co., 585 F.2d 932, 938 n.5 (8th Cir. 1978) Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir. 1976) Phelan v. Middle States Oil Corp., 220 F.2d 593, 619 (2d Cir. 1955) Armstrong Cleaners, Inc. v. Erie Ins. Exch., 364 F.Supp. 2d 797, 815 (S.D. Ind. 2005) Rocchigiani v. World Boxing Counsel, 82 F.Supp. 2d 182, 189 (S.D.N.Y. 2000) Union Ins. Co. v. Knife Co., 902 F. Supp. 877, 881 (W.D. Ark. 1995) ESM Gov’t. Sec., Inc. v. ESM Group, Inc. 66 B.R. 82, 84 (S.D. Fla. 1986) United States v. Bergmann, 47 F. Supp. 765, 767 (S.D. Cal. 1942) In re BH & P, Inc., 103 B.R. 556, 560 (Bankr. D.N.J. 1989) In re Tampa Chain Co., 35 B.R. 568, 579 n.10 (Bankr. S.D.N.Y. 1983) United States v. Short, 50 M.J. 370, 374 (C.A.A.F. 1999) (phrase from the Bible) 70 NEW YORK CITY LAW REVIEW [Vol. 9:31 United States v. Nabisco, Inc., 117 F.R.D. 40, 44-45 (E.D.N.Y. 1987) Kamean v. Local 363, 109 F.R.D. 391, 396 (S.D.N.Y. 1986) United States v. Agosto, 528 F. Supp. 1300, 1310 (D. Minn. 1981) United States v. Garafola, 428 F. Supp. 620, 621 (D.N.J. 1977) (Biblical teaching) Vance Trucking Co. v. Canal Ins. Co., 249 F. Supp. 33, 38 n.2 (D.S.C. 1966) United States v. Kawakita, 96 F. Supp. 824, 836 (S.D. Cal. 1950) State Court Cases Office of Consumer Counsel v. Conn. Dep’t of Pub. Util. Control, No. CV020513718S, 2002 WL 31319517, at *3 (Conn. Super. Ct. Sept. 24, 2002) Wis. Patients Comp. Fund v. Physicians Ins. Co. of Wis., 620 N.W.2d 457, 461-62 (Wis. Ct. App. 2000) Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 998 P.2d 856, 877 (Wash. 2000) State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W.2d 625, 634 (Tex. 1998) In re Estate of Koch, 849 P.2d 977, 993 (Kan. Ct. App. 1993) Geauga County Bar Ass’n. v. Psenicka, 577 N.E.2d 1074, 1074 (Ohio 1991) Friends of La Vina v. County of L.A., 284 Cal. Rptr. 171, 178 n.1 (Ct. App. 1991) (Gates, Acting P.J., dissenting) Ex parte Weaver, 570 So.2d 675, 682 (Ala. 1990) J.K. & Susie L. Wadley Research Inst. & Blood Bank v. Morris, 776 S.W.2d 271, 284 (Tex. Ct. App. 1989) People v. Williams, 538 N.E.2d 564, 569 (Ill. App. Ct. 1989) (admonition) Collins v. Citizens & S. Trust Co., 373 S.E.2d 612, 617 (Ga. 1988) 2005] QUOTING THE BIBLE 71 Swartz v. State, 429 N.W.2d 130, 132 (Iowa 1988) SHV Coal, Inc. v. Cont’l Grain Co., 545 A.2d 917, 921 (Pa. Super. Ct. 1988) Brickner v. Normandy Osteopathic Hosp., Inc., 746 S.W.2d 108, 113 (Mo. Ct. App. 1988) Jim Royer Realty, Inc. v. Moreira, 363 S.E.2d 10, 12 (Ga. Ct. App. 1988) Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d 1330, 1356 n.25 (Miss.1984) In re Conduct of Samuels and Weiner, 674 P.2d 1166, 1171 (Or. 1983) Webb v. State, 433 So.2d 496, 499 (Fla. 1983) Ellis v. Flink, 374 So.2d 4, 5 n.4 (Fla. 1979) Conn. Comm’n on Special Revenue v. Conn. Freedom of Info. Comm’n, 387 A.2d 533, 537 (Conn. 1978) Harford County v. Tatar, Lininger, Clark & Wood, Inc., 363 A.2d 501, 505 (Md. 1976) In re Runals’ Estate, 328 N.Y.S.2d 966, 978 (Sur. Ct. 1972) Onorato v. Wissahickon Park, Inc., 244 A.2d 22, 25 (Pa. 1968) Spratlin, Harrington & Thomas, Inc. v. Hawn, 156 S.E.2d 402, 407 (Ga. Ct. App. 1967) (Biblical expression) State v. 62.96247 Acres of Land, More or Less, in New Castle, 193 A.2d 799, 806 n.7 (Del. Super. Ct. 1963) State v. Brewer, 129 S.E.2d 262, 277 (N.C. 1963) Martin v. Hieken, 340 S.W.2d 161,165 (Mo. Ct. App. 1960) Hughes v. Robbins, 164 N.E.2d 469, 473 (Ohio Ct. Com. Pl. 1959) (“It has been well written that ‘no servant can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other.’”) 72 NEW YORK CITY LAW REVIEW [Vol. 9:31 Powers v. Johnson, 306 S.W.2d 616, 624 (Mo. Ct. App. 1957) Fruchtl v. Foley, 84 So.2d 906, 909 (Fla. 1956) (admonition) Lexington Insulation Co. v. Davidson County, 90 S.E.2d 496, 498 (N.C. 1955) City of Miami v. Benson, 63 So.2d 916, 920 (Fla. 1953) Ridgway v. Super. Ct. of Yavapai, 245 P.2d 268, 271 (Ariz. 1952) Safeway Stores v. Retail Clerks Int’l Ass’n, 234 P.2d 678, 682 (Cal. Dist. Ct. App. 1951) State ex rel. Young v. Niblack, 99 N.E.2d 839, 845 (Ind. 1951) Bossler v. Wilson, 65 Pa. D. & C. 164, 171 (Phila. Mun. Ct. 1949) City of Jackson v. McLeod, 24 So.2d 319, 325 (Miss. 1946) (“The public interest requires the undivided loyalty of police officers to the public service and we were told long ago by One whose judgment was infallible that ‘no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.’”) Barr v. Sun Life Assurance Co. of Can., 200 So. 240, 244 (Fla. 1941) Century Indem. Co. v. Carnes, 138 S.W.2d 555, 560 (Tex. Civ. App. 1940) Moffett Bros. P’ship Estate v. Moffett, 137 S.W.2d 507, 511 (Mo. 1939) Caudle v. Sears, Roebuck & Co., 182 So. 461, 464 (Ala. 1938) Whitlow v. Patterson, 112 S.W.2d 35, 41 (Ark. 1937) (“No man can serve two masters; for either he will hate the one, and love the other; or else he will hold to the one and despise the other.”) Hood ex rel. N.C. Bank & Trust v. N.C. Bank & Trust, 184 S.E. 51, 62 (N.C. 1936) Olson v. Gaddis Inv. Co., 39 P.2d 744, 747 (Utah 1935) City of Leesburg v. Ware, 153 So. 87, 89 (Fla. 1934) 2005] QUOTING THE BIBLE 73 State ex rel. Union Elec. Light & Power Co. v. Pub. Serv. Comm’n, 62 S.W.2d 742, 746 (Mo. 1933) Harris v. United Serv. Co., 32 S.W.2d 618, 619 (Ark. 1930) (general principle) Robson v. Hahn, 277 P. 507, 508 (Cal. Dist. Ct. App. 1929) Schwartzman v. London & Lancashire Fire Ins. Co. of Liverpool, Eng., 2 S.W.2d 593, 602 (Mo. 1927) Castellanos v. Castro, 289 S.W. 104, 105 (Tex. Civ. App. 1926) (“It was said by the Great Teacher that ‘no man can serve two masters . . . .’”) Rezos v. Zahm & Nagel Co., 246 P. 564, 565 (Cal. Dist. Ct. App. 1926) Carolina Bagging Co. v. Byrd, 116 S.E. 90, 92 (N.C. 1923) Hume v. Baggett & Baggett, 221 S.W. 1002, 1003 (Tex. Civ. App. 1920) (“This rule of law not only rests on an understanding of human nature but on the utterance of the Divine Nazarene, when he said: ‘No man can serve two masters; for either he will hate the one and love the other; or else he will hold to the one, and despise the other.’”) Murray v. Lizotte, 77 A. 231, 238 (R.I. 1910) (“No matter how high his motives or how honorable his intention, ‘no man can serve two masters; for either he will hate the one, and love the other; or he will hold to the one, and despise the other.’”) Shamokin Mfg. Co. v. Ohio German Fire Ins. Co., 39 Pa. Super. 553, 556 (Super. Ct. 1908) (“It involves a question whether the same person may be an agent in a private transaction for both parties, without the consent of both, so as to entitle him to compensation from both or either. We have the authority of Holy Writ for saying that ‘no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.’ All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence.“) U.S. Tel. Co. v. Middlepoint Home Tel. Co., 19 Ohio Dec. 202, 208 (Ct. Com. Pl. 1908) (“It is as true today as when first spoken in the 74 NEW YORK CITY LAW REVIEW [Vol. 9:31 parable, and has become a fundamental rule that ‘No servant can serve two masters; for either he will hate the one and love the other; or else he will hold to the one and despise the other.’”) Gann v. Zettler, 60 S.E. 283, 283 (Ga. Ct. App. 1908) (Powell, J.) (“It is recorded of Him ‘who spake as never man spoke’ that, ‘seeing the multitudes, he went up into a mountain, and when he was set his disciples came unto him; and he opened his mouth and taught them; saying: “No man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.”’ So, also, is our law. Whoso, having undertaken the service of his master, counsels with another and agrees also to serve him in those same things wherewith he has been trusted, cannot claim the reward promised by his master unless he makes it plain that he has not acted privily, but that his master was consenting thereto.” (internal citations omitted)) City of Philadelphia v. Durham, No. 1, 1907 WL 3343, at *13 (Pa. Ct. Com. Pl. Jan. 30, 1907) (“We have the authority of Holy Writ for saying that ‘no man can serve two masters; for either he will hate the one and love the other, or else he will hold to the one and despise the other.’ All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence.”) McDowell v. First Nat’l Bank of Sutton, 102 N.W. 615, 617 (Neb. 1905) Nat’l Tube Co. v. Eastern Tube Co., 13 Ohio Cir. Dec. 468 (Cir. Ct. 1902) Home Bldg. & Loan Ass’n v. Evans, 53 S.W. 1104, 1105 (Tenn. Ct. Ch. App. 1899) Moore v. Grow, 1 Pa. Super. 125, 127 (Super. Ct. 1896) Northrup v. Phillips, 99 Ill. 449, 454 (1881) Dickson v. People ex rel. Brown, 17 Ill. 191, 193 (1855) CITING TO LUKE State Court Cases Nationwide Mut. Fire Ins. Co. v. Bourlon, 617 S.E.2d 40, 60 (N.C. Ct. App. 2005) 2005] QUOTING THE BIBLE 75 Barefield v. DPIC Cos., 600 S.E.2d 256, 281 (W. Va. 2004) Rose ex rel. Rose v. St. Paul Fire & Marine Ins. Co., 599 S.E.2d 673, 688 (W. Va. 2004) People v. Graham, 794 N.E.2d 231, 236 (Ill. 2003) Myer v. Preferred Credit, Inc., 117 Ohio Misc. 2d 8, 24 (Ct. Com. Pl. 2001) State v. Reddick, 534 S.E.2d 473, 477 (Ga. Ct. App. 2000) Brooks v. Zebre, 792 P.2d 196, 200 (Wyo. 1990) Watkins v. Floyd, 492 S.W.2d 865, 870 (Mo. Ct. App. 1973) Wise v. S. Pac. Co., 77 Cal. Rptr. 156, 160 (Ct. App. 1969) Pac. Indem. Co. v. Indus. Accident Comm’n, 81 P.2d 572, 575 (Cal. Ct. App. 1938) Smith v. Harvey-Given Co., 185 S.E. 793, 796 (Ga. 1936) Jordan v. Austin Sec. Co., 51 P.2d 38, 58 (Kan. 1935) State v. Gautier, 147 So. 240, 246 (Fla. 1933) Never Fail Land Co. v. Cole, 149 S.E. 585, 588 (N.C. 1929) Patterson v. De Haven, 263 P. 568, 572 (Cal. Dist. Ct. App. 1928) Chippewa Power Co. v. R.R. Comm’n of Wis., 205 N.W. 900, 902 (Wis. 1925) Reserve Loan Life Ins. Co. v. Phillips, 119 S.E. 315, 317 (Ga. 1923) Pagel v. Creasy, 6 Ohio App. 199, 206 (Ct. App. 1916) McCudden v. Brockmeyer, 26 Ohio Dec. 432, 436 (Ct. Com. Pl. 1915) Carr v. Ubsdell, 71 S.W. 112, 113 (Mo. Ct. App. 1902) Bell v. McConnell, 37 Ohio St. 396, 399 (1881) 76 NEW YORK CITY LAW REVIEW [Vol. 9:31 NO QUOTATION MARKS Federal Court Cases United States v. Freyer, 333 F.3d 110, 112 (2d Cir. 2003) (no lawyer can serve two masters) United States v. Levine, 794 F.2d 1203, 1205 (7th Cir. 1986) Ottawa Tribe v. United States, 166 Ct. Cl. 373, 379 (Ct. Cl. 1964) (gospel) Speeter v. United States, 42 F.2d 937, 940 (8th Cir. 1930) (old principle) Parkerson v. Borst, 264 F. 761, 765 (5th Cir. 1920) (scriptural maxim) United States v. Krafft, 249 F. 919, 928 (3d Cir. 1918) Curved Electrotype Plate Co. of N.Y. v. United States, 50 Ct. Cl. 258, 272 (Ct. Cl. 1915) (authoritative declaration) Crites, Inc., v. Prudential Ins. Co. of Am., 134 F.2d 925, 927 (6th Cir. 1943) (principle) Rankin v. United States, 98 Ct. Cl. 357, 367 (Ct. Cl. 1943) (authoritative declaration) Mich. Steel Box Co. v. United States, 49 Ct. Cl. 421, 439 (Cl. Ct. 1914) (authoritative declaration) Bramhall v. United States, 4 Ct. Cl. 51, 59 (Cl. Ct. 1868) Klein v. Miller, No. Civ.A.SA-02-CA-687FB, 2004 WL 1118725, at *10 (W.D. Tex. Mar. 30, 2004) (biblical advice) Costa v. U.S. Dep’t of Veteran’s Affairs, 845 F. Supp. 64, 69 (D.R.I. 1994) (biblical advice) Overfield v. Pennroad Corp., 42 F. Supp. 586, 608 (E.D. Pa. 1941) In re Int’l Match Corp., 20 F. Supp. 420, 422 (S.D.N.Y. 1937) (truth of the biblical admonition) John Conlon Coal Co. v. Westchester Fire Ins. Co. of N.Y., 16 F. Supp. 93, 95 (M.D. Pa. 1936) (principle) 2005] QUOTING THE BIBLE 77 Marshall v. Lovell, 11 F.2d 632, 639 (D. Minn. 1926) Brookings State Bank v. Federal Reserve Bank of S.F., 281 F. 222, 228 (D. Or. 1922) Brookings State Bank v. Federal Reserve Bank of S.F., 277 F. 430, 432 (D. Or. 1921) Brown v. Pa. Canal Co, 229 F. 444, 452 (E.D. Pa. 1916) In re Va. Hardwood Mfg. Co., 139 F. 209, 218 (W.D. Ark. 1905) Farmers’ Loan & Trust Co. v. Winona & Sw. Ry. Co., 59 F. 957, 961 (C.C.D. Minn. 1893) Putnam v. Commonwealth Ins. Co., 4 F. 753, 760 (C.C.N.D.N.Y. 1880) In re Tinley Plaza Assocs., 142 B.R. 272, 279 (Bankr. N.D. Ill.1992) In re Huddleston, 120 B.R. 399, 401 (Bankr. E.D. Tex.1990) United States v. Hubbard, 43 C.M.R. 322, 325 (C.M.A. 1971) (truth of the Scriptural injunction) Midwest Farmers v. United States, 64 F. Supp. 91, 102 (D. Minn. 1945) State Court Cases People v. Hardin, 840 N.E.2d 1205, 1212 (Ill. 2005) Coronado v. Schoenmann Produce Co., 99 S.W.3d 741, 753-55 (Tex. Ct. App. 2003) State ex rel. S.G., 814 A.2d 612, 616 (N.J. 2003) Barrett v. Union Twp. Comm., 553 A.2d 62, 65 (N.J. Super. Ct. App. Div. 1989) (moral rule) Siegman v. Bd. of Educ., 477 N.E. 2d 241, 243 (Ill. App. Ct. 1985) Copple v. City of Lincoln, 274 N.W.2d 520, 526 (Neb. 1979) Pa. Labor Relations Bd. v. E. Lancaster County Sch. Dist., 1973 WL 16227, at *3 (Pa. Ct. Com. Pl. May 18, 1973) (fundamental truth) 78 NEW YORK CITY LAW REVIEW [Vol. 9:31 City of Montgomery v. Brendle Fire Equip., Inc., 279 So.2d 480, 486 (Ala. 1973) Procidano v. Mautner, 335 N.Y.S.2d 17, 24 (N.Y. Civ. Ct. 1972) St. Paul at Chase Corp. v. Mfrs. Life Ins. Co., 278 A.2d 12, 25 (Md. 1971) Bd. of Educ. v. Wilton, 273 A.2d 44, 50 (N.J. 1971) Caddie v. Warden, Md. Correctional Inst., 238 A.2d 129, 129 (Md. Ct. Spec. App. 1968) (theory) Hasbrouck v. Rymkevitch, 268 N.Y.S.2d 604, 606 (App. Div. 1966) Commonwealth ex rel. Whitling v. Russell, 176 A.2d 641, 643 (Pa. 1962) Van Dyke v. White, 349 P.2d 430, 437 (Wash. 1960) Md. Credit Finance Corp. v. Hagerty, 139 A.2d 230, 233 (Md. 1958) Jedwabny v. Phila. Transp. Co., 135 A.2d 252, 255 (Pa. 1957) (scriptural references) Coble v. Econ. Forms Corp. 304 S.W.2d 47, 51 (Mo. Ct. App. 1957) Aldom v. Borough of Roseland, 127 A.2d 190, 194 (N.J. Super. Ct. App. Div. 1956) (moral rule) Jersey City v. Hague, 115 A.2d 8, 13 (N.J. 1955) Henshie v. McPherson & Citizens State Bank, 280 P.2d 937, 947 (Kan. 1955) In re Ridgely, 106 A.2d 527, 530 (Del. 1954) (injunction) Cornale v. Stewart Stamping Corp., 129 N.Y.S.2d 808, 814 (Sup. Ct. 1954) Shernoff v. Schimel, 112 N.Y.S.2d 333, 347 (Sup. Ct. 1952) Klein v. Twentieth Century-Fox Int’l Corp., 108 N.Y.S.2d 767, 768 (Sup. Ct. 1951) (fact) State ex inf. Taylor v. Cumpton, 240 S.W.2d 877, 884-85 (Mo. 1951) 2005] QUOTING THE BIBLE 79 Petition of Topham, 58 Pa. D. & C. 649, 654 (Ct. Com. Pl. 1947) Nagel v. Todd, 45 A.2d 326, 328 (Md. 1946) City of Lincoln v. First Nat’l Bank of Lincoln, 19 N.W.2d 156, 159 (Neb. 1945) (moral rule) Alabama State Fed’n of Labor v. McAdory, 18 So.2d 810, 829 (Ala. 1944) Phillips v. Phillips, 13 So.2d 922, 923 (Fla. 1943) Almon v. Am. Carloading Corp., 38 N.E.2d 362, 363-64 (Ill. App. Ct. 1941) (rule of law) Cowan v. Hamilton Nat’l Bank, 146 S.W.2d 359, 362 (Tenn. 1941) Jarrett v. French & Co., 3 N.Y.S.2d 227, 228 (App. Div. 1938) (theory) Valley & Siletz R.R. Co. v. Thomas, 48 P.2d 358, 383 (Or. 1935) Beatty v. Employers’ Liab. Assurance Corp., 168 A. 919, 924 (Vt. 1933) Greenfield v. Bausch, 263 N.Y.S. 19, 21 (App. Div. 1933) (fact) Elco Shoe Mfrs. v. Sisk, 183 N.E. 191, 191-92 (N.Y. 1932) Kane v. McClenachan, 159 A. 61, 64 (Pa. Super. Ct. 1932) Pac. Fin. Corp. v. City of Lynwood, 300 P. 50, 53 (Cal. Dist. Ct. App. 1931) (principle) New England Oil Ref. Co. v. Can. Mex. Oil Co., 174 N.E. 330, 337 (Mass. 1931) Terrell v. Town of Tempe, 274 P. 786, 788 (Ariz. 1929) Lucas Realty Co. v. Franks, 6 S.W.2d 273, 274 (Ky. 1928) Eastham v. Stumbo, 279 S.W. 1109, 1110 (Ky. 1926) C.M. Condon & Co. v. Richardson, 232 P. 1070, 1071 (Kan. 1925) De Crette v. Mohler, 127 A. 639, 642 (Md. 1925) 80 NEW YORK CITY LAW REVIEW [Vol. 9:31 Smith v. Ward, 197 N.W. 684, 685 (S.D. 1924) Williams v. Bolling, 121 S.E. 270, 273 (Va. 1923) Grady v. Pink Hill Bank & Trust Co., 113 S.E. 667, 669 (N.C. 1922) In re Moses, 195 N.Y.S. 358, 360 (App. Div. 1922) (old as Holy Writ) Meeks v. Fink, 89 So. 543, 544 (Fla. 1921) Wilson v. S. Pac. Land Co., 46 Cal. App. 738, 745 (Ct. App. 1920) Clarksburg Light & Heat Co. v. Pub. Serv. Comm’n, 100 S.E. 551, 555 (W. Va. 1919) State v. Nichols, 166 N.W. 813, 813 (N.D. 1918) Southampton Twp. v. Johnson, No. 3, 1916 WL 4261, at *1 (Pa. Ct. Com. Pl. Jan. 17, 1916) Schenectady Illuminating Co. v. Bd. of Supervisors, 151 N.Y.S. 830, 831 (Sup. Ct. 1914) Hirsh v. Twyford, 139 P. 313, 316 (Okla. 1913) Norbeck & Nicholson Co. v. State, 142 N.W. 847, 852 (S.D. 1913) (fundamental proposition) City of Minneapolis v. Canterbury, 142 N.W. 812, 814 (Minn. 1913) Hill v. Whiteside, 85 A. 425, 425 (Pa. 1912) Bell v. Riggs, 127 P. 427, 430 (Okla. 1912) (high authority) Langford v. Issenhuth, 134 N.W. 889, 894 (S.D. 1912) (fundamental law) Salene v. Queen City Fire Ins. Co. of Sioux Falls, 116 P. 1114, 1115 (Or. 1911) (principle) Cobe v. Coughlin Hardware Co., 112 P. 115, 117 (Kan. 1910) Mitchell v. Schreiner, 1910 WL 4143, at *1 (Pa. Super. Ct. 1910) (quoted from the Bible) Lightcap v. Nicola, 34 Pa. Super. 189, 202 (Super. Ct. 1907) 2005] QUOTING THE BIBLE 81 Harper v. Fidler, 78 S.W. 1034, 1035 (Mo. Ct. App. 1904) (authoritative declaration) Hier v. Miller, 75 P. 77, 77 (Kan. 1904) Edwards v. Home Ins. Co., 73 S.W. 881, 885 (Mo. Ct. App. 1902) In re Reifschneider, 69 N.Y.S. 1069, 1074 (App. Div. 1901) Murphy v. Indep. Order of Sons & Daughters of Jacob of Am., 27 So. 624, 625 (Miss. 1900) McFarland v. Gordon, 41 A. 507, 508 (Vt. 1898) Delaware, L. & W. R. Co. v. Hardy, 34 A. 986, 987 (N.J. 1896) Shepard v. Hill, 34 P. 159, 160 (Wash. 1893) State v. Hastings, 55 N.W. 774, 789 (Neb. 1893) Huggins Cracker & Candy Co. v. People’s Ins. Co., 41 Mo. App. 530, 541 (1890) (authoritative declaration) Whited v. Germania Fire Ins. Co., 76 N.Y. 415, 420 (1879) Roll v. Riddle, 5 Ohio Dec. Reprint 232, 655 (Super. Ct. 1874) Ex rel. Dawson, 39 Ala. 367, 404 (1864) In re Miller, 30 Pa. 478, 494 (1858) Laight St. Baptist Church v. Noe, 12 How. Pr. 497, 497 (N.Y. Sup. Ct. 1855) Buckles v. Lafferty’s Legatees, 41 Va. (2 Rob.) 292, 302 (1843) Gayden v. Gayden, 1842 WL 2414, at *5 (S.C. Ct. App. Eq. 1842) (eternal truth) State v. Hunt, 20 S.C.L. (2 Hill) 1, 64 (Ct. App. 1834) Gallatian v. Cunningham, 8 Cow. 361, 371 (N.Y. Sup. Ct. 1826) Carter v. Harris, 25 Va. (4 Rand.) 199, 204 (1826) (principle) McAllister v. Marshall, 6 Binn. 338, 350 (Pa. 1814) 82 NEW YORK CITY LAW REVIEW [Vol. 9:31 QUOTATION MARKS WITHOUT CITATION Federal Court Cases United States v. Bowens, 108 F. App’x 945, 971 (5th Cir. 2004) Berwind Corp. v. Fyfe, No. 89-55880, 1990 WL 208794, at *3 (9th Cir. 1990) United States v. Evans, 572 F.2d 455, 480 (5th Cir. 1978) Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 233 (2d Cir. 1977) Bhd. of Locomotive Firemen and Enginemen v. Mitchell, 190 F.2d 308, 308 (5th Cir. 1951) (scriptural pronouncement) Va. Ferry Corp. v. NLRB, 101 F.2d 103, 105 (4th Cir. 1939) (high authority) Turner v. Kirkwood, 49 F.2d 590, 594 (10th Cir. 1931) (infallible truth and divine saying) Crawford v. United States, 30 App. D.C. 1, 12 (D.C. Cir. 1907) Olcott v. Rice, 69 F. 199, 202 (5th Cir. 1895) (truth) McGlothlin v. Connors, 142 F.R.D. 626, 635 (W.D. Va. 1992) (biblical admonition) Schwartz v. O’Grady, No. 86 CIV. 4243, 1990 WL 156274, at *5 (S.D.N.Y. Oct. 12, 1990) SEC v. Commonwealth Sec. Investors, Inc., No. 2161, 1970 WL 202, at *7 (E.D. Ky. Oct. 21, 1970) (Biblical quote) Mo. State Life Ins. Co. v. Keyes, 46 F. Supp. 181, 185 (W.D. Ky. 1933) (Jesus said) United States v. Walter, 291 F. 662, 663 (S.D. Fla. 1921) United States v. Del. & Hudson Co, 164 F. 215, 258 (C.C.E.D. Pa. 1908) United States v. Booth, 148 F. 112, 116 (C.C.D. Or. 1906) (principle) 2005] QUOTING THE BIBLE 83 Symmes v. Union Trust Co. of N.Y., 60 F. 830, 864 (C.C.D. Nev. 1894) United States v. Sippel, 8 C.M.R. 698, 745 (C.M.R. 1953) (principle) In re Grand Jury Investigation, 436 F. Supp. 818, 821 (W.D. Pa. 1977) (ancient axiom) Dobbins v. Local 212, 292 F. Supp. 413, 451 n. 19 (S.D. Ohio 1968) In re W.T. Byrns, Inc., 260 F. Supp. 442, 445 (E.D. Va. 1966) Shapiro v. Stahl, 195 F. Supp. 822, 825 (M.D. Pa. 1961) (infallible declaration) Livingston v. Shreveport-Texas League Baseball Corp., 128 F. Supp. 191, 199 (W.D. La. 1955) (axiom) State Court Cases People v. Woidtke, 729 N.E.2d 506, 513 (Ill. App. Ct. 2000) Winmark Ltd. P’ship v. Miles & Stockbridge, 674 A.2d 73, 87 (Md. Ct. Spec. App. 1996) Friendship Heights Citizens Comm. v. Barlow, 329 A.2d 122, 125 (Md. Ct. Spec. App. 1974) Am. Ins. Ass’n v. Ky. Bar Ass’n, 917 S.W.2d 568, 571 (Ky. 1996) Md. Metals, Inc. v. Metzner, 382 A.2d 564, 568 (Md. 1978) In re Brown, 559 P.2d 884, 889 (Or. 1977) Drenning v. Kuebel, Inc., 327 So. 2d 571, 575 (La. Ct. App. 1976) In re Boivin, 533 P.2d 171, 174 (Or. 1975) Commonwealth v. Shank, 54 Pa. D. & C.2d 602, 605 (Ct. Com. Pl. 1971) Elizabeth Fire Officers Ass’n v. City of Elizabeth, 274 A.2d 817, 819 (N.J. Super. Ct. App. Div. 1971) Warminster Twp. Appeal, 56 Pa. D. & C.2d 99, 111 (Ct. Com. Pl. 1971) 84 NEW YORK CITY LAW REVIEW [Vol. 9:31 Claughton v. Bear Stearns & Co., 156 A.2d 314, 319-20 (Pa. 1959) (infallible declaration and public policy rule) McCall v. Johns, 294 S.W.2d 869, 871 (Tex. Ct. App. 1956) State v. Haesemeyer, 78 N.W.2d 36, 40 (Iowa 1956) (ancient truth) In re Bond & Mortg. Guar. Co., 103 N.E.2d 721, 725 (N.Y. 1952) (centuries-old scriptural passage) Ky. State Fair Bd. v. Fowler, 221 S.W.2d 435, 439 (Ky. Ct. App. 1949) (philosophy) In re Buder, 217 S.W.2d 563, 574 (Mo. 1949) Kurtz v. Steinhart, 60 Pa. D. & C. 345, 360 (Ct. Com. Pl. 1947) (old adage) In re Laegen’s Estate, 43 N.Y.S.2d 924, 926 (Sur. Ct. 1943) Rotzin v. Miller, 277 N.W. 811, 817 (Neb. 1938) (hallowed petition) Int’l Serv. Union Co. v. People ex rel. Wettengel, 70 P.2d 431, 436 (Colo. 1937) Haines v. Biddle, 188 A. 843, 844 (Pa. 1937) (infallible declaration and public policy rule) Richter Jewelry Co. v. Schweinert, 169 So. 750, 753 (Fla. 1936) (general rule) Whelan v. Bailey, 36 P.2d 709, 710 (Cal. Dist. Ct. App. 1934) (saying) Bland v. Smith, 33 P.2d 25, 27 (Cal. Dist. Ct. App. 1934) (rule) Clawans v. Ordway Bldg. & Loan Ass’n., 164 A. 267, 283 (N.J. 1933) (wisdom of the ages) Mees v. Grewer, 245 N.W. 813, 815 (N.D. 1932) Hall v. Williams, 50 S.W.2d 138, 140 (Mo. 1932) (ancient maxim) Neb. State Bank of Norfolk v. Sch. Dist. of Pierce, 240 N.W. 570, 571 (Neb. 1932) (good authority) 2005] QUOTING THE BIBLE 85 Wick v. Youngstown Sheet & Tube Co., 1930 WL 2386, at *5 (Ohio Ct. Com. Pl. Dec. 29, 1930) Cent. Nat. Bank of Lincoln v. First Nat. Bank, 219 N.W. 894, 895 (Neb. 1928) (philosophy) McDaniel v. Cont’l Cas. Co., 240 Ill. App. 535, 549 (App. Ct. 1926) In re Water Rights in Silvies River, 237 P. 322, 358 (Or. 1925) Shealy v. S. Ry. Co., 120 S.E. 561, 568, 575 (S.C. 1924) Koons v. Richardson, 227 Ill. App. 477, 484 (App. Ct. 1923) (rule of the moral law and expression) Tex. Ref. Co. v. Alexander, 202 S.W. 131, 134 (Tex. Civ. App. 1918) (very high authority has said) Tusant v. Grand Lodge A.O.U.W., 163 N.W. 690, 693 (Iowa 1917) (law) Kirby-Sorge-Felske Co. v. Doty, 157 N.W. 273, 276 (Mich. 1916) (infallible declaration) Peterson v. Lewis, 154 P. 101, 106 (Or. 1915) In re E. Cameron Twp. Auditors’ Report, 1915 WL 3321, at *7 (Pa. Com. Pl. Aug. 11, 1915) (statement) (general principle) In re Krauthoff, 177 S.W. 1112, 1125 (Mo. Ct. App. 1915) (Highest Authority has said) King v. Reed, 141 P. 41, 43 (Cal. Ct. App. 1913) (infallible declaration and public policy rule) Clopton v. Meeves, 133 P. 907, 910 (Idaho 1913) (common experience and unanimous verdict of mankind) Jacobs v. Beyer, 125 N.Y.S. 597, 599 (App. Div. 1910) (rule) Biddle v. Cumberland County, No. 15, 1908 WL 2834, at *1 (Pa. Ct. Com. Pl. Oct. 20, 1908) Commonwealth ex rel. Kutz v. Witman, 66 A. 986, 987 (Pa. 1907) (statement) 86 NEW YORK CITY LAW REVIEW [Vol. 9:31 Evans v. Rockett, 32 Pa. Super. 365, 369 (Super. Ct. 1907) (infallible declaration) Commonwealth v. Miller, 1906 WL 3769, at *4 (Pa. Super. Ct. 1906) (expression) Wilkinson v. McCullough, 46 A. 357, 358 (Pa. 1900) (infallible declaration) Leathers v. Canfield, 75 N.W. 612, 616 (Mich. 1898) (infallible declaration) Addison v. Wanamaker, 39 A. 1111, 1111 (Pa. 1898) (proposition of the highest and best authority) Deutsch v. Baxter, 47 P. 405, 405 (Colo. App. 1896) (fact) Wildberger v. Hartford Fire Ins. Co., 17 So. 282, 283 (Miss. 1895) Finch v. Redding, 26 A. 368, 369-70 (Pa. 1893) (infallible declaration and public policy rule) Caswell v. Jones, 26 A. 529, 530 (Vt. 1893) Harkness v. Briscoe, 47 Mo. App. 196, 198 (Ct. App. 1891) (principle) Pearson v. Concord R.R., 62 N.H. 537, 545 (1883) Memphis, Kan. & Colo. Ry. Co. v. Parsons Town Co., 26 Kan. 503, 509 (1881) Haxton v. Harris, 19 Kan. 511, 512 (1878) Draper v. Moore, 1872 WL 6072, at *4 (Ohio Super. Ct. 1872) BIBLICAL MANDATE State Court Cases Hartford Accident & Indem. Co. v. Foster, 528 So.2d 255, 277 (Miss. 1988) (ancient principle) Kirby v. Cruce, 688 S.W.2d 161, 171 (Tex. Ct. App. 1985) (Christian morality) 2005] QUOTING THE BIBLE 87 In re Hershberger, 606 P.2d 623, 627 (Or. 1980) (biblical admonition) Citizens Bank v. C & H Constr. & Paving Co., 600 P.2d 1212, 1217 (N.M. Ct. App. 1979) (centuries-old scriptural passage) Twp. Comm. of Hazlet Twp., Monmouth County v. Morales, 289 A.2d 563, 565 (N.J. Super. Ct. Law Div. 1972) (moral rule) State v. Goode, 171 N.W.2d 733, 733 (S.D. 1969) (ancient admonition) State ex rel. Londerholm v. Schroeder, 430 P.2d 304, 314 (Kan. 1967) (ancient injunction) Riviera Congress Assocs. v. Yassky, 264 N.Y.S.2d 624, 634 (Sup. Ct. 1965) (centuries-old scriptural passage) Schear v. City of Elizabeth, 196 A.2d 774, 778 (N.J. 1964) (universal moral rule) Naftalin v. John Wood Co., 116 N.W.2d 91, 99 (Minn.1962) (truth of the biblical admonition) Dick & Reuteman Co. v. Doherty Realty Co., 114 N.W.2d 475, 479 (Wis. 1962) (centuries-old scriptural passage) Schauer v. City of Miami Beach, 112 So.2d 838, 841 (Fla. 1959) (familiar scriptural quotation) Spadaro v. Palmisano, 109 So.2d 418, 421 (Fla. Dist. Ct. App. 1959) (biblical mandate) Raymond v. Bartlett, 175 P.2d 288, 289 (Cal. Dist. Ct. App. 1946) (biblical doctrine) Higginbotham v. Pub. Belt R.R. Comm’n, 181 So. 65, 71 (La. Ct. App. 1938) (biblical doctrine) In re Flavin’s Guardianship, 18 N.E.2d 514, 518 (Ohio Ct. App. 1938) (law for two thousand years) Adams v. Hearn, 178 A. 606, 611 (Md. 1935) (divine injunction) Stubbs v. Fla. State Finance Co., 159 So. 527, 528 (Fla. 1935) (familiar scriptural quotation) 88 NEW YORK CITY LAW REVIEW [Vol. 9:31 Mangels v. Safe Deposit & Trust Co. of Balt., 173 A. 191, 197 (Md. 1934) (divine precept) State v. Williams, 68 S.E. 900, 902 (N.C. 1910) (scriptural teaching) Hamilton v. Allen, 125 N.W. 610, 612 (Neb. 1910) (philosophy of the Galilean and declaration) Beasley v. Swinton, 24 S.E. 313, 322 (S.C. 1896) (Christ said) Funk v. Washington Twp., No. 196, 1893 WL 2925, at *4 (Pa. Ct. Com. Pl. July 15, 1893) (authority of Holy Writ) Pa. R.R. Co. v. Flanigan, 4 A. 364, 367 (Pa. 1886) (authority of Holy Writ) Everhart v. Searle, 71 Pa. 256, 259 (1872) (authority of Holy Writ and principle) Scheible v. Bacho, 41 Ala. 423, 450 (1868) (Divine declaration) Herman v. Martineau, 1 Wis. 151, 158 (1853) (doctrine of Holy Writ) PRINCIPLE OR PROPOSITION State Court Cases People v. Dobrino, 592 N.E.2d 391, 401 (Ill. App. Ct. 1992) People v. Arnold, 577 N.E.2d 1355, 1362 (Ill. App. Ct. 1991) Fed’n of State Cultural & Educ. Prof’l v. Commonwealth, 546 A.2d 147, 150 (Pa. Commw. Ct. 1988) People v. Spreitzer, 525 N.E.2d 30, 34 (Ill. 1988) State v. Basham, 170 N.W.2d 238, 255 (S.D. 1969) (principle) Batson v. Strehlow, 59 Cal. Rptr. 195, 205 (Cal. Ct. App. 1967) Holmes v. McKey, 383 P.2d 655, 664 (Okla. 1963) In re Guardianship of Angell, 167 N.E.2d 711, 713 (Ill. App. Ct. 1960) Battle v. Reserve Life Ins. Co., 168 N.E.2d 915, 918 (Ohio Ct. App. 1959) 2005] QUOTING THE BIBLE 89 Fred Tuke & Son v. Burkhardt, 156 N.E.2d 490, 491 (Ohio Mun. Ct. 1958) State v. Hambrick, 196 P.2d 661, 667 (Wyo. 1948) Callahan v. Jones, 93 P.2d 326, 330 (Wash. 1939) Gallin v. Nat’l City Bank of N.Y., 273 N.Y.S. 87, 101 (Sup. Ct. 1934) Rossi v. Firemen’s Ins. Co. of Newark, N. J., 165 A. 16, 18 (Pa. 1932) Garibaldi Bldg. & Loan Ass’n of Atlantic City v. Garibaldi, 162 A. 419, 423 (N.J. Ch. 1932) Swearingen v. Moore, 280 P. 295, 299 (Okla. 1929) Johnson ex rel. McCarter v. Nippert, 144 A. 404, 406 (Pa. 1928) Adams v. Kennard, 253 P. 1048, 1049 (Or. 1927) Quell v. Boyajian, 90 Pa. Super. 386, 389 (Super. Ct. 1926) (ancient principle) Murray v. Stuart, 247 P. 187, 188 (Colo. 1926) (ancient principle) W.R. Pickering Lumber Co. v. Sherritt, 233 P. 179, 180 (Okla. 1924) Rowe v. Freeman, 172 P. 508, 511 (Or. 1918) Livermore Falls Trust & Banking Co. v. Riley, 78 A. 980, 981 (Me. 1911) Wolford v. Upper Salford Twp. Sch. Dist., 46 Pa. Super. 1, 4 (Super. Ct. 1910) Clark v. Hubbard, 44 Pa. Super. 37, 42 (Super. Ct. 1910) (public policy rule) Edwards v. Meyers, 76 A. 510, 511 (Pa. 1910) Marshall v. Reed, 32 Pa. Super. 60, 61 (Super. Ct. 1906) (declaration and general principle) Maxwell v. West, No. 603, 1900 WL 4333, at *1 (Pa. Ct. Com. Pl. Feb. 3, 1900) 90 NEW YORK CITY LAW REVIEW [Vol. 9:31 Cincinnati, H. & D. R.R. Co. v. Morris, 10 Ohio C.C. 502, 520 (Cir. Ct. 1895) Rice v. Davis, 20 A. 513, 514 (Pa. 1890) (infallible declaration and public policy rule) Bensley v. Moon, 7 Ill. App. 415, 421 (App. Ct. 1880) Bassett v. Monte Christo Gold & Silver Min. Co., 15 Nev. 293, 299 (1880) (general principle) Eur. & N. Am. Ry. Co. v. Poor, 59 Me. 277, 277 (1871) Morrison v. Ogdensburgh & Lake Champlain R.R. Co., 52 Barb. 173, 173 (N.Y. Sup. Ct. 1868) PROVERB OR MAXIM State Court Cases In re Estate of Shano, 869 P.2d 1203, 1210 (Ariz. Ct. App. 1993) Plaquemines Parish Com’n Council v. Delta Dev. Co., 502 So.2d 1034, 1040 (La. 1987) Alexander v. Super. Ct., 685 P.2d 1309, 1315 (Ariz. 1984) Int’l Ass’n of Fire Fighters, Local 1052 v. Pub. Employment Relations, 630 P.2d 470, 474 (Wash. Ct. App. 1981) In re Adkins’ Estate, 319 P.2d 512, 515 (Mont. 1957) (old proverb) Shell Oil Co. v. Bd. of County Com’rs, 231 P.2d 220, 224 (Kan. 1951) (maxim) Engle v. Dist. Ct., 85 P.2d 627, 629 (Utah 1938) In re Union Real Estate Inv. Co. First Mortgage 6% Gold Bonds Due July 1, 1941, 1 A.2d 662, 666 (Pa. 1938) Howard v. Potts, 233 N.W. 909, 912 (S.D. 1930) (moral maxim) Horan v. Varian, 265 P. 263, 267 (Cal. Dist. Ct. App. 1928) Cameron v. White, 262 P. 664, 668 (Okla. 1927) Salata v. Dylewski, 207 N.W. 895, 896 (Mich. 1926) 2005] QUOTING THE BIBLE 91 Farnsworth v. Hatch, 151 P. 537, 541 (Utah 1915) In re Ramsey, 123 N.W. 726, 728 (S.D. 1909) (moral maxim) Casey v. Donovan, 65 Mo. App. 521, 529 (Ct. App. 1896) Burke v. Bours, 32 P. 980, 981 (Cal. 1893) Piatt v. Longworth’s Devisees, 27 Ohio St. 159, 195 (1875) (legal maxim)https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1119&context=clr City University of New York Law Review Volume 9 | Issue 1 ...
Translation It takes the average person about 90 days to ingest the full 60 gram treatment. I suggest that people start with three doses pe...