Is The Secular Extremist Trend About To Be Reversed?
The Mount Soledad Cross case affords the United States Supreme Court the opportunity to reconsider and to remedy the much mistaken and muddled state of the law as to the First Amendment's religious clauses and to reverse the secular extremist course that the Court suddenly and senselessly took in 1947.
On the eve of the Fourth of July, Associated Press immediately reported a delightful development: the United States Supreme Court, by Justice Anthony Kennedy, had temporarily enjoined the removal of the Cross that has been part of the Mount Soledad National War Memorial, located on city property in San Diego, California, for many years. At the request of an atheist (Philip Paulson), a federal judge (Gordon Thompson Jr.) had ordered the city of San Diego to remove that Cross or be fined $5,000 a day, based on his view that the presence of the Cross constituted an unconstitutional endorsement of Christianity over other religions.
Three years ago, the United States Supreme Court declined to hear the case. Since then, (1) the Court issued rulings, each 5 to 4, permitting a Ten Commandments display on the Texas capitol grounds and banning them in Kentucky courthouses (in 2005); (2) the late Chief Justice William Rehnquist died and was replaced by Chief Justice John Roberts (in 2005); (3) Justice Samuel A. Alito, Jr. replaced now former Justice Sandra Day O'Connor (in 2006); (4) under Chief Justice Roberts, in a case involving the use of hallucinogenic tea by a small branch of a South American religious sect, it unanimously ruled that the government cannot hinder religious practices without proof of a "compelling" need to do so (in 2006); and (5) removal of that Cross was ordered (in 2006).
The Mount Soledad Cross case affords the United States Supreme Court the opportunity to reconsider and to remedy the much mistaken and muddled state of the law as to the First Amendment's religious clauses and to reverse the secular extremist course that the Court suddenly and senselessly took in 1947, in the Everson case. In Everson, the United States Supreme Court wrongly expanded the scope of the establishment clause, creating contradiction and confusion best remedied by completely correcting the egregious error.
When America declared its independence from the British king in 1776, it simultaneously reaffirmed its dependence upon God. America's Declaration of Independence begins:
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness--that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness"
"We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
"And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."
Lest there be any doubt that the people who made America a free and independent nation by revolting against King George III continued to worship Jesus Christ (in various ways), each of America's governing documents--the Articles of Confederation and the Constitution--is dated "in the year of our Lord."
Obviously "our Lord" referred to Jesus Christ, The men who wrote and ratified the Articles of Confederation and the Constitution would have been aghast at the suggestion that government had to be neutral as between religion and irreligion instead of supportive of religion generally, as the United States Supreme Court suddenly declared in 1947, and the receptivity of any judge to atheist's argument that the Mount Soledad Cross had to be removed because it violated the First Amendment's Establishment Clause.
Associate United States Supreme Court Justice Joseph Story, in Section 1871 of his Commentaries on the Constitution (1833), explained: "The real object of the [religious clauses of the First] amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age."
Did Justice Story perceive an intention that government be neutral as between religion and irreligion, or refrain from supporting religion generally?
In Section 1865, Justice Story viewed such neutrality as utterly irresponsible:
"How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; — these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience."
The phrase "separation of church and state" did not appear in the First Amendment or in the drafting of or debate on it, and Justice Story certainly did not write it into the First Amendment.
In Section 1866, Justice Story wrote on the kinds of governmental involvement with religion:
"The real difficulty lies in ascertaining the limits, to which government may rightfully go in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honours, trusts, emoluments, privileges, and immunities of the state. For instance, a government may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honours, trusts, emoluments, privileges, and immunities."
In Section 1867, Justice Story unambiguously supported general governmental support for Christianity:
"Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty. Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great, basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty. He has gone even further, and affirmed, that the Protestant religion is far more congenial with the spirit of political freedom, than the Catholic. 'When,' says he, 'the Christian religion, two centuries ago, became unhappily divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain. The people of the north have, and will ever have, a spirit of liberty and independence, which the people of the south have not. And, therefore, a religion, which has no visible head, is more agreeable to the independency of climate, than that, which has one.' Without stopping to inquire, whether this remark be well founded, it is certainly true, that the parent country has acted upon it with a severe and vigilant zeal; and in most of the colonies the same rigid jealousy has been maintained almost down to our own times. Massachusetts, while she has promulgated in her BILL OF RIGHTS the importance and necessity of the public support of religion, and the worship of God, has authorized the legislature to require it only for Protestantism. The language of that bill of rights is remarkable for its pointed affirmation of the duty of government to support Christianity, and the reasons for it. 'As,' says the third article, 'the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through the community, but by the institution of the public worship of God, and of public instructions in piety, religion, and morality; therefore, to promote their happiness and to secure the good order and preservation of their government the people of this Commonwealth have a right to invest their legislature with power to authorize, and require, and the legislature shall from time to time authorize and require, the several towns, parishes, &c. &c. to make suitable provision at their own expense for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.' Afterwards there follow provisions, prohibiting any superiority of one sect over another, and securing to all citizens the free exercise of religion."
In Section 1868, Justice Story declared that the American people expected their federal government to support Christianity generally:
"Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."
In Section 1870, Justice Story explained that governmental support for religion generally did not violate the legitimate scope of the right of conscience:
"But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that 'religion or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence,' Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, at the same time has expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. 'No man, or society of men,' says he, 'have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself.' The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority...."
Article I, Section 7 of the United States Constitution states in part:
"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law."
Notice the parenthetical?
Because the men who drafted the Constitution were Christians and Sunday is the Lord's Day according to most Christians. Jews and some Christians observe the period from Friday evening to Saturday evening as a day of rest and worship. But the Constitution was specific: it excepted Sundays, not the President's Sabbath of choice (or provide for an exception only if the President is a Sabbath observer).
With respect to religion, the First Amendment simply states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." These days it is commonly commented that the jurisprudence of the First Amendment's religious clauses is contradictory BUT, despite the machinations of secular extremists since the First Amendment was written and ratified, the law as explained by the United States Supreme Court and the leading legal commentators WAS clear until the United States Supreme Court, in Everson v. Board of Education, 330 U.S. 1 (1947), explained the legal significance of the establishment clause of the First Amendment this way: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'"
Insofar as the Supreme Court required governmental neutrality between religion and irreligion and restricted governmental support of religion generally, it was legislating from the bench, rejecting the Court's historical position and profoundly (and perversely) wrong.
In Davis v. Beason, 133 U.S. 333 (1890), decided long after the Fourteenth Amendment was adopted, the United States Supreme Court explicitly acknowledged God (identified alternately as "Creator" and "Maker") instead of calling for governmental neutrality between religion and irreligion and described America as Christian.
The issue was "whether the district court... had jurisdiction of the offense charged in the indictment, of which the defendant was found guilty." The Supreme Court accepted "the fact alleged, that the defendant was a member of an order or organization known as the 'Mormon Church,' called the 'Church of Jesus Christ of Latter-Day Saints,' [and] the fact [alleged] that the order of organization taught and counseled its members and devotees to commit the crimes of bigamy and polygamy, as duties arising from membership therein." Taking these allegations as true, it not only held that "an offense was committed of which the territorial court had jurisdiction to try the defendant," but also acknowledged God and described the United States of America as "civilized and Christian" in its decision:
"[O]n this point there can be no serious discussion or difference of opinion. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries....They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community."
The argument that religious freedom immunized bigamy and polygamy was not only rejected, but rebuked:
"To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases."
The Supreme Court defined the term "religion" as used in the First Amendment as "one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will"; distinguished "religion" from "the cultus or form of worship of a particular sect"; and explained the purpose of the religious clauses of the First Amendment:
"[The term 'religion'] is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The first amendment to the constitution, in declaring that congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question. It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society. With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation."
The Court proceeded to praise traditional marriage, to warn against perverting the Constitution and to look to "the general consent of the Christian world": "There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes, as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance."
History reveals that the grotesquely expanded establishment clause was written to bar preferring a particular religious denomination, not to ban support for religion (or Christianity) generally.
It would be wonderful if an atheist's obnoxious effort to impose secular extremism even further by forcing removal of the Mount Soledad Cross resulted instead in removal from the prevailing law of activist Supreme Court decisions contravening the intention of the First Amendment's religious clauses.
Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.
Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.
The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.
Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.