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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  July 4, 2006
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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:

and concludes:

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?

CERTAINLY NOT!

In Section 1865, Justice Story viewed such neutrality as utterly irresponsible:

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:

In Section 1867, Justice Story unambiguously supported general governmental support for Christianity:

In Section 1868, Justice Story declared that the American people expected their federal government to support Christianity generally:

In Section 1870, Justice Story explained that governmental support for religion generally did not violate the legitimate scope of the right of conscience:

Article I, Section 7 of the United States Constitution states in part:

Notice the parenthetical?

(Sundays excepted).

Why Sundays?

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:

The argument that religious freedom immunized bigamy and polygamy was not only rejected, but rebuked:

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 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

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Biography - Michael J. Gaynor

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.

Gaynor's email address is gaynormike@aol.com.


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