Commentaries, Global Warming, Opinions   Cover   •   Commentary   •   Books & Reviews   •   Climate Change   •   Site Links   •   Feedback
"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:  July 19, 2007
Print article - Printer friendly version

Email article link to friend(s) - Email a link to this article to friends

Facebook - Facebook

Topic category:  Other/General

Mitt Romney's Trump Card: Promoting Religious Liberty

The solution for Mr. Romney is simple: Mr. Romney, as a person discriminated against by some because he is a Mormon (it's much better these days to be a woman or a black running for president), should take the lead in the fight against the kind of religious discrimination advocated by a potential third-party presidential candidate, New York City's Mayor Blumberg, and that means calling for judges who will be faithful to the Constitution instead of fixated on rewriting it to suit their personal political agendas under the guise of construing it.

The Skoros case (Skoros v. City of New York) allowed New York City under the "leadership" of Mayor Mike Blumberg to ban Nativity scenes in public school Christmas displays, while permitting a Jewish menorah, a Muslim star and crescent and a Christmas tree. New York City defended the policy by arguing that the Jewish and Islamic symbols, displayed on the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, were "secular" symbols, while the nativity scene was "purely religious." The anti-Christian nature of the New York City public school system display policy was but slightly disguised: Even the Second Circuit majority rejected as "mischaracteriz[ation]" New York City's false argument that the menorah and star and crescent are permissible symbols because they are "secular," while the creche had to be excluded because it was "purely religious."

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, called the decision another outrageous example of federal courts discriminating against Christians. Mr. Thompson: "Many federal courts are using the contrived endorsement test to cleanse America of Christianity. This unprincipled test allows judges to impose their ideological views under the pretext of constitutional interpretation. Thus, the majority opinion says it is legitimate to discriminate against Christians in the largest public school system in the country, with over one million students enrolled in its 1200 public schools and programs. This should be a wake-up call for Christians across this nation."

Ken Blackwell is a Townhall.com Contributing Editor, a Senior Fellow at both the Family Research Council and the Buckeye Institute and a former Republican Secretary of State and gubernatorial candidate in Ohio.

Mr. Blackwell's take on the Republican presidential nomination: "Mitt Romney must win Iowa, New Hampshire, and Nevada to have a chance at the nomination."

Mr. Blackwell's calls it "a daunting challenge," even though "many core GOP voters have serious problems with Mr. Giuliani’s liberal views and personal life, and a there are a host of grievances against Mr. McCain."

Mr. Blackwell's warning: "Mr. Romney has packaged himself as the only conservative who can win. Mr. Thompson entering the race imperils that strategy."

Mr. Blackwell's evaluation:

"Mr. Romney will need to find a way to project his image to the people without face-to-face interaction and without paid advertisements. If he does, and wins the first three contests, he just might make it.

"It seems almost impossible. But like I said, that’s the norm for presidential campaigns."

It's darkest before the dawn.

The solution for Mr. Romney is simple: Mr. Romney, as a person discriminated against by some because he is a Mormon (it's much better these days to be a woman or a black running for president), should take the lead in the fight against the kind of religious discrimination advocated by a potential third-party presidential candidate, New York City's Mayor Blumberg, and that means calling for judges who will be faithful to the Constitution instead of fixated on rewriting it to suit their personal political agendas under the guise of construing it.

In Skoros, religious discrimination was tolerated by the United States Court of Appeals for the Second Circuit, 2 to 1. The United States Supreme Court did not grant the petition for certiorari in the case, not because the petition was untimely, but because there were not quite five votes to reverse yet (and there won't be anytime soon unless a faithful constitutionalist is elected president).

In 2002, The Thomas More Law Center (www.thomasmore.org), a national public interest law firm based in Ann Arbor, Michigan, filed a federal civil rights lawsuit on behalf of Andrea Skoros and her two children, elementary school students in the New York City public school system, against the City of New York, the Chancellor of the New York City Department of Education, and another school official, alleging that the City's policy regarding "Holiday Displays" unlawfully discriminates against Christians.

At issue was a school policy promulgated by the Chancellor's office that prohibits the display of Nativity scenes in New York City's schools during the Christmas season, but expressly permits and encourages these schools to display during certain religious holidays and seasonal observances the Jewish Menorah and the Islamic Star and Crescent. New York City officials claimed that the goal of this policy is "to promote understanding and respect for the diverse beliefs and customs relating to our community's observance of the winter holiday." Ms. Skoros and her children, devout Roman Catholics, objected to this policy, which appears on its face to be discriminatory, because it endorses and promotes the Jewish and Muslim faiths and conveys the impermissible message of disapproval of Christianity.

In 2001, pursuant to this policy, several New York City public schools, including one of the schools attended by Ms. Skoros' son, displayed the Jewish Menorah and the Islamic Star and Crescent, but not the Nativity scene. One public school principal issued a memo pursuant to the "Holiday Displays" policy encouraging teachers to bring to school "religious symbols" that represent the Islamic and Jewish religions without mentioning Christianity. Catholic League president William Donohue made several attempts to get school officials to change their discriminatory policy, without success. School officials dismissed requests to display the Nativity scene and instead would only allow Christmas trees, a secular symbol not the equivalent of the religious symbols allowed for Jews and Muslims.

Mr. Thompson summarized his clients' objection as follows: "The policy relegates Christians to second class citizens. Forcing schools to only allow secular symbols for Christmas while allowing religious symbols for other religions' holiday observances shows a callous indifference and hostility toward Christians during one of their holiest seasons. It is ironic that a religion enjoying the largest following in this nation is consigned by the City of New York to a least-favored status. It's a shame that we have reached a point in our Nation's history that 'respect for diverse beliefs and customs' has come to mean discrimination against Christians — at Christmas time no less."

Does this governmental policy violate the Establishment and Free Exercise Clauses of the First Amendment and/or Ms. Skoros' constitutional right as a parent to direct the religious education of her children?

The United States District Court for the Eastern District of New York answered no and dismissed the complaint, but NOT on the ground that New York City had not established a policy:

"The City objects to the characterization of the Holiday Display memorandum, along with its interpretation and application, as a 'policy.' However, it is abundantly clear that a memorandum authored by the General Counsel to the DOE Chancellor entitled 'Holiday Displays' and distributed to all superintendents and principals in the City DOE in two successive school years, establishing 'guidelines' for holiday displays and relied upon in denying repeated requests to include a crèche in the holiday displays, is properly considered a 'policy' as required to establish liability by a municipality such as New York City under 42 U.S.C. § 1983. See Monell v. Dept. of Social Servs., 436 U.S. 658, 690-91 (1978)."

The plaintiffs' impermissible hostility argument, that is, that a "policy which allows for Jewish and Muslim symbols with religious dimensions but excludes the crèche, a Christian symbol with religious dimensions, suggests an impermissible hostility towards Christianity," was rejected on two grounds: (1) "the holiday display policy does in fact allow for Christmas, and (2) "the policy does not single out the crèche but, rather, distinguishes between symbols with secular dimensions that are permissible and "purely religious" symbols that are not permissible."

The District Court's position: "Exclusion of the crèche from holiday displays is not discriminatory or hostile towards Christianity but, rather, serves the holiday display policy's secular purpose. By excluding purely religious symbols of all faiths, the policy avoids the appearance of endorsing any one religion and, instead, has the primary secular effect of celebrating the diversity of the winter holiday season."

Ironically, voluntary nondenominational school prayer was banned in public schools to protect the sensibilities of a tiny minority. The District Court not only displayed a lack of concern for the sensibilities of those who perceive the New York City policy as discriminatory, but disparaged then as "hyper-sensitive and not "objective":

"[T]he message presented by the display of a menorah and a star and crescent in the context of the greater holiday displays in the public schools must be reviewed as perceived by the children, Christian children in particular, but not one hyper-sensitive Catholic child. Upon reviewing the dizzying array of holiday symbols depicted in P.S. 165, 169, and 184, it is impossible to conclude that Christian students attending one of these schools may interpret the inclusion of menorahs and a star and crescent in the temporary displays as an endorsement of Judaism or Islam over Christianity or feel coerced into practicing a particular religion. The context of these holiday displays neutralizes the religious dimensions of the menorah and the star and crescent such that even a child participating in the creation of the display would not perceive it to be an endorsement of Judaism or Islam. Nor would any child looking at them objectively view these holiday displays, including, as they do, numerous Christmas symbols, and perceive a message of disapproval of Christianity."

Upon appeal, a panel of the United States Court of Appeals for the Second Circuit affirmed, 2 to 1, "decid[ing] only that the defendants do not violate the Constitution when, in pursuing the secular goal of promoting respect for diverse cultural traditions, they do not include a crèche."

Mr. Thompson condemned the majority decision: "Many federal courts are using the contrived endorsement test to cleanse America of Christianity. This unprincipled test allows judges to impose their ideological views under the pretext of constitutional interpretation. Thus, the majority opinion says it is legitimate to discriminate against Christians in the largest public school system in the country, with over one million students enrolled in its 1200 public schools and programs. This should be a wake-up call for Christians across this nation."

Significantly, Judge Chester Straub embraced the plaintiffs' position on the Establishment Clause (but not on her free exercise and parental rights claims) and issued a separate opinion explaining that "the policy of the New York City Department of Education to arrange for the children to celebrate the holiday season in schools through the use of displays and activities that include religious symbols of the Jewish holiday of Chanukah and the Muslim commemoration of Ramadan, but starkly exclude any religious symbols of the Christian holiday of Christmas, fails under the [Constitution], both on its face and as applied."

Judge Straub concluded that the governmental policy and the displays considered in the case "violated the Establishment Clause insofar as a reasonable student observer would perceive a message of endorsement of Judaism and Islam and a reasonable parent observer would perceive a message that Judaism and Islam are favored and that Christianity is disfavored":

"My chief disagreement with the majority is as to the 'reasonable observer' in this case. It is my view that we must view the displays and celebrations from the perspective of elementary or secondary school students in the New York City public school system, as well as from the perspective of parents of such students who experience the displays through and with their children and who have knowledge of the history and context of the policy and displays. In failing to examine the displays and celebrations from the perspective of the students, the majority pays only lip service, and indeed, effectively turns a blind eye, to the significant impact of the students' impressionability and youth."

Judge Straub argued that this aspect of the New York City policy was itself a violation of the Constitution, noting that the nativity scene or crèche "depicts a historical event and thus, has some non-religious aspects to it" and concluding that New York City's "action in defining a menorah and star and crescent as secular, and a crèche as 'purely religious,' is impermissible insofar as it takes positions on divisive religious issues."

Robert Muise, The Thomas More Law Center's attorney handling the case, assured supporters that "[t]his battle is far from over," because a petition for certiorari would be filed with the United States Supreme Court.

The majority opinion was not only unseemingly jocular (beginning "No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays"), but fundamentally flawed and exquisitely suitable for United States Supreme Court reconsideration of Everson.

If Mr. Romney goes on offensive on religious liberty, only the hard-core anti-Mormon bigots will deny him a fair shake and they will be insignificant.

There is a simple reason why post-World War II jurisprudence involving the First Amendment's religious clauses is twisted and tortured: the United States Supreme Court (SCOTUS) made an egregious error in 1947 in ruling that government must be neutral as between religion and irreligion and must not support religion generally and it has not yet corrected itself.

America was founded based not only on a belief in God, but on fundamental rights given to people by God that governments established by people are bound to respect. Thus, 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."

Neither of America's governing documents purported to reject either God, or the idea of God, or the natural law view expounded in America's founding document, its Declaration of Independence. The Articles of Confederation referred to God as "the Great Governor of the Universe." The Constitution spoke of securing "the Blessings of Liberty" in its preamle and was dated "in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth."

Obviously "our Lord" referred to Jesus Christ. The Founders were Christians, not atheists or agnostics. Thus, America's greatest Chief Justice, John Marshall, wrote in 1833: "The American population is entirely Christian, and with us Christianity and Religion are identified. It would be strange indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations to it." That statement was not literally true, of course; Americans were not even entirely Christian. But Americans overwhelmingly were a people of faith and expected their federal government to acknowledge God and to support religion generally without establishing an official national religion. (Each state, on the other hand, was free to establish an official state religion, most of them had an official state religion and all of them disestablished their state religions by 1839, by the free choice of the people of the respective states rather than by compulsion by the federal government or federal courts.)

Associate United States Supreme Court Justice Joseph Story, in his the seminal Commentaries on the Constitution (1833), explained that the real object of the First Amendment's religious clauses was "to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment...." "The duty of supporting religion," Justice Story emphasized, was "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."

Justice Story conceived of governmental support for religion as a responsibility, rather than a prerogative, and not less important than respect for private religious beliefs. In his words, "it is the especial duty of government to foster" religion, and this duty is "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."

According to Justice Story: "Probably at the time of the adoption of the Constitution, and of the [adoption of the First Amendment]..., 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," and that "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."

Justice Story observed that "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."

Plainly, the secular extremist notion that public recognition of God and support for religion generally must yield to "the right of private judgment" would have been repulsive and almost incomprehensible to Justice Story.

Thomas Cooley, a leading nineteenth century legal commentator, in his treatise, Constitutional Limitations, explained long after the Fourteenth Amendment had been ratified that recognition of God and general support for religion were, indeed, governmental prerogatives: "[T]he American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires. . . . Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws."

Atheists and agnostics were entitled to their private denials or doubts, but NOT to be free FROM religion in an overwhelmingly religious nation. As Mr. Cooley put it: government needs to "foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." "Public recognition of religious worship" is based on "the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction."

In Holy Trinity Church v. United States, 143 U.S. 457 (1892), the United States Supreme Court described America as "a Christian nation":

"If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation."

The decision did not draw a single dissent, and the so-called tension between the two religious clauses of the First Amendment was dismissed as contrived:

"Even the constitution of the United States, which is supposed to have little touch upon the private life of the individual, contains in the first amendment a declaration common to the constitutions of all the states, as follows: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' etc., — and also provides in article 1, § 7, (a provision common to many constitutions,) that the executive shall have 10 days (Sundays excepted) within which to determine whether he will approve or veto a bill.

"There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Comm., 11 Serg. & R. 394, 400, it was decided that, 'Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; * * * not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men.'"Updegraph v. Commonwealth of Pennsylvania, 11 Serg & R., decided by the Pennsylvania Supreme Court in 1824 was a blasphemy case that is particularly noteworthy because in Italy a priest is being prosecuted (persecuted seems the better word) for asserting that Jesus Christ actually lived!

The deChristianization argument was refuted with utter assurance and apparent disdain: "[T]he assertion is once more made that Christianity never was received as part of the common law of this Christian land; and it is added that if it was it was virtually repealed by the Constitution of the United States and of this State. . . .

"We will first dispose of what is considered the grand objection — the constitutionality of Christianity — for, in effect, that is the question. Christianity, general Christianity, is and always has been a part of the common law. . . not Christianity founded on any particular religious tenets; not Christianity with an established church . . . but Christianity with liberty of conscience to all men.

"Thus this wise legislature framed this great body of laws for a Christian country and Christian people. . . . This is the Christianity of the common law. . . and thus it is irrefragably [undeniably] proved that the laws and institutions of this State are built on the foundation of reverence for Christianity . . . . In this the Constitution of the United States has made no alteration nor in the great body of the laws which was an incorporation of the common-law doctrine of Christianity.

"No free government now exists in the world unless where Christianity is acknowledged and is the religion of the country. . . . Its foundations are broad and strong and deep . . . it is the purest system of morality, the firmest auxiliary, and only stable support of all human laws."

Since 1947, SCOTUS has been saying something very different, although there was no constitutional amendment designed to change the law in the interim and notwithstanding that judicial doctrine known as stare decisis (upon which judicial activists rely whenever it helps them and which they reject when it does not).

In 1947, in Everson v. Board of Education, 330 U.S. 1, the United States Supreme Court strayed from the constitutional path when it explained the legal significance of the religious clauses 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 profoundly (and perversely) wrong.

Justice Antonin Scalia, in a footnote to his compelling dissent in McCreary County v. American Civil Liberties Union of Kentucky (June 27, 2005), the infamous Kentucky Ten Commandments case, not only lamented the insidious effect of Everson, but lambasted it as specious:

"The fountainhead of this jurisprudence, Everson v. Board of Ed. of Ewing, based its dictum that '[n]either a state nor the Federal Government . . . can pass laws which . . . aid all religions,' 330 U.S., at 15, on a review of historical evidence that focused on the debate leading up to the passage of the Virginia Bill for Religious Liberty, see id., at 11–13. A prominent commentator of the time remarked (after a thorough review of the evidence himself) that it appeared the Court had been 'sold . . . a bill of goods.' Corwin, The Supreme Court as National School Board, 14 Law & Contemp. Prob. 3, 16 (1949)."

Governor Romney, opportunity is knocking.

Michael J. Gaynor

Send email feedback to Michael J. Gaynor


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.


Read other commentaries by Michael J. Gaynor.

Copyright © 2007 by Michael J. Gaynor
All Rights Reserved.

[ Back ]


© 2004-2017 by WEBCommentary(tm), All Rights Reserved