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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  May 5, 2007
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Focus on Religious Liberty View, Not Religious Preference

There is more for Governor Romney to do and to explain, but "Don't vote for the Mormon" is an unpersuasive refrain.

As Justice Joseph Story explained in his Commentaries on the Constitution (1833): "[T]he Catholic and the Protestant, the Calvanist and the Arminian, the Jew and the Infidel, may sit down at the common tables of the national councils without any inquisition into their faith or mode of worship."

That means (among other things) that a Mormon can be President.

What's supposed to matter are a person's character and ability, not that person's religious preference (although faithfulness to one's religious preference does demonstrate character and unfaithfulness to it demonstrates lack of character).

Presidential aspirant Mitt Romney outshined his rivals for the Republican presidential nomination during the debate at the Reagan Library on May 3, 2007.

He's a Mormon.

Ho hum.

Because Governor Romney is a Mormon and previous Democrat presidential candidate John Kerry is a Catholic who would have been refused Holy Communion by Archbishop Raymond Burke of St. Louis and other distributors of Holy Communion who respect canon law and refuse to commit sacrilege and cooperate in public scandal, Governor Romney was asked a question during the debate that writer Mark Hemingway, in an article entitled "Mitt Romney Can Do Whatever the Heck He Wants Even if he is MORMON," declared "the most asinine question of the night about whether or not the government should interfere when Catholic churches deny Communion to pro-abortion politicians."

In 1947, in Everson v. Board of Education, the United States Supreme Court stated: "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.'"

The Court accorded undue significance to the Jefferson letter and arbitrarily and gratuitously expanded the scope of the First Amendment's Establishment Clause (at the expense of its Free Exercise Clause) far beyond what the people who wrote and ratified the First Amendment intended, but it was right about government being prohibited from interfering in the affairs of religious organizations, as Governor Romney appreciates.

Those hoping that Governor Romney would say that as President he would tell the Catholic bishops that they must permit abortion advocates to receive Holy Communion were sorely disappointed.

Governor Romney: "I wouldnít say anything to Roman Catholic bishops. They can do whatever the heck they want. I canít imagine a government telling a church who can have communion in their church Ö This is a nation after all that wants a leader thatís a person of faith but we donít choose our leader based on what church they go to.Ē

Mr. Hemingway: "In answering, Romney pulled off the neat trick of radiating conviction in his answer while being astonished by the shortsightedness of the question."

Yes, but what was stunning was that moderator and "Hardball" host Chris Matthews served up a slow-pitch softball for Governor Romney to hit out of the park.

Instead, Mr. Matthews should have asked each of the Republican presidential hopefuls whether he believes that the Supreme Court was right or wrong to say that the First Amendment mandates governmental neutrality between religion and irreligion and prohibits governmental support for religion generally.

The correct answer is WRONG. Everson went much too far. As a result, unless a Republican is elected to appoint Supreme Court justices like Chief Justice Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr., a Democrat will appoint secular extremist justices like Clinton appointee Ruth Bader Ginsburg who will further distance America from its religious heritage by striking "under God" from "The Pledge of Allegiance" as soon as the opportunity to do is presented.

Mr. Hemingway's view is "that the separation of church and state is enough of a cherished American value that no one, let alone a candidate for president of the United States would have to seriously answer that question" posed by Mr. Matthews to Governor Romney.

That depends upon what is meant by "the separation of church and state" and voters need to know what each aspirant thinks it means.

If it means that the Constitution prohibits a religious test for federal office, that's true and that's a suitable separation.

If it means an absolute separation of church and state that bans governmental acknowledgement of God, religion from the public square and religious values from informing public policy, that contradicts original intention and America's history from its founding in 1776 until 1947 and it is suitable for an atheistic or agnostic people, not Americans. As Founder John Adams said: "We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

The United States Supreme Court concurred in Zorach v. Clauson (1952):

"We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here.

"This program may be unwise and improvident from an educational or a community viewpoint. That appeal is made to us on a theory, previously advanced, that each case must be decided on the basis of 'our own prepossessions.' See McCollum v. Board of Education, supra, p. 238. Our individual preferences, however, are not the constitutional standard. The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree. See McCollum v. Board of Education, supra, p. 231.

"In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case. But we cannot expand it to cover the present release time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion."

So what is critical is what is meant by separation of church and state. It is not supposed to mean "hostility to religion" or that agnosticism is supposed to be government's attitude toward God.

Mr. Hemingway was upset by Mr. Matthew's question, both for himself and Governor Romney, as well as anti-Mormon prejudice generally:

"Unfortunately, Romney is seen by many not foremost as a presidential contender, but as a Mormon and therefore odd and suspect. It canít be a coincidence that that particular inquiry was directed at him. While Romney coolly shut the door on the question, he had every reason to be upset.

"I know I was. I converted to Lutheranism some years ago much to my parents chagrin, but I was raised Mormon. However much I disagree with the theology of my former religion, the core values of my Latter-day Saints family and friends are not to be called into question and they certainly donít disqualify Mormons from holding elected office."

I don't think it's fair either, but I want a president with a penchant for making lemonade out of lemons, not one submits to secular extremist pressure. There is no dispute that Governor Romney's religious preference does not prohibit his candidacy, but voters are entitled to support or refuse to support him and anyone else for any reason or no reason and it behooves all presidential aspirants to accept the burden of proving that they are intellectually, physically and morally fit to be president instead of to tell voters that they have no right to consider any of their personal preferences.

In the contest for the Republican presidential nomination, it turns out that Mormon Mitt is the only top tier candidate who married once and for life, instead of proceeding for wife to wife, or wife to wife to wife.

Give me a faithful person of a faith that worships a benevolent God over a faithless co-religionist (officially) any day.

Mr. Hemingway obviously is worried that Mr. Romney won't receive a fair shake from the voters because he is a Mormon:

"Unfortunately, the questions wonít abate. The normally insightful and delightfully irascible Bob Novak published a column Thursday in advance of the debate titled 'Will ignoring film mean curtains for Romney?' Itís about how Romneyís candidacy will be hurt by the fact that he wonít comment on a new film about the Mountain Meadows Massacre.

"For those of you who donít know, the Mountain Meadows Massacre is arguably the darkest moment in Mormon history. Fueled by suspicion and facing hostilities from the U.S. government over the issue of polygamy, in 1857 a rogue band of Mormons and Paiute Indians slaughtered 120 settlers passing through Utah and stole their cattle. It was an atrocious crime, no question. Speculation has run rampant since the event that the slaughter was personally ordered by the Mormon prophet Brigham Young himself. Though suggestions of Youngís involvement are not beyond the pale, there is no proof he was involved in the killing.

"The film Novak speaks of, September Dawn, takes the historically debatable position that Young ordered the killing personally...."

Why care?

Governor Romney didn't massacre anyone and respects life from conception. Senator McCain is not responsible for the Civil War, and Mayor Giuliani (who will be satisfied whether Roe v. Wade is overruled or not) did not cause the Roman Catholic Church's sex abuse scandal. Judging people on the basis of their conduct is sensible. Judging them on the basis of what their co-religionists have done is not. There are good and bad Mormons, Catholics, Lutherans, Methodists, Jews, Moslems, etc. Treat people as individuals.

I don't care what Governor Romney thinks about the historical dispute as to whether Brigham Young did or did not do anything bad with respect to a nineteenth century atrocity.

I care whether he's against atrocities (including abortion) and he is.

I care what Governor Romney thinks the proper relationship of government and religion should be and whether he will appoint persons who are faithful to the Constitution as written (sometimes called strict constructionists, but more accurately called advocates of constitutional fidelity or judicial restraint).

I'd rather trust a person who is faithful to a phony who pretends to be faithful and a person who is faithful to his or her marital vows than one who is not.

There is more for Governor Romney to do and to explain, but "Don't vote for the Mormon" is an unpersuasive refrain.

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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