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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:  October 31, 2007
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John Jay v. JFK on Religious Influence

Voters should know a candidate's attitude toward religion and religious values. They are not voting for a minister, but they need to decide who is good and who is sinister.

James Madison, the Father of the Constitution, defined religion simply as "the duty owed the Creator."

The Constitution's prohibition on a religious test as a qualification for public office does NOT prohibit voters from taking into account religion and religious values in deciding for whom to vote, nor does it prohibit members of the executive and legislative branches of federal government from considering religion, religious values and support of, tolerance for religion and hostility toward religion in making appointments so long as religion is not made a qualification.

In 1960, then presidential hopeful John F. Kennedy's famous "Houston Speech" was made to assure Protestants that he was not a papal pawn who would take instruction from the Vatican if elected President of the United States.

Much of the speech is sensible, of course.

But not all of it.

For example, JFK said, "[W]hat kind of church I believe in...should be important only to me...."

With respect to most "churches," that's workable. But if a candidate is part of a racist church, or an Islamo-fascist mosque, or the Church of Satan, that should be important to the voters too."

JFK also uncritically and carelessly embraced absolutism:

"I believe in an America where the separation of church and state is absolute; where no Catholic prelate would tell the President -- should he be Catholic -- how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference, and where no man is denied public office merely because his religion differs from the President who might appoint him, or the people who might elect him.

"I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accept instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials, and where religious liberty is so indivisible that an act against one church is treated as an act against all."

But, absolute separation of church and state was NOT what was intended, and, to establish it, the Constitution has not been duly amended.

Also, Catholic prelates and Protestant ministers are entitled to express themselves freely too under the First Amendment.

Joseph Story, Associate United States Supreme Court Justice and author of Commentaries on the Constitution (1833), explained that under the Constitution "the Catholic and the Protestant, the Calvanist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship."

In fact, the United States Constitution provided for institutional separation of church and state, by prohibiting any religious test "as a Qualification to any Office or public Trust under the United States," but it did NOT provide for ABSOLUTE SEPARATION OF CHURCH AND STATE.

Thus, Justice Story wrote: "Probably at the time of the adoption of the Constitution, and of the amendments to it..., 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. Any 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."

The Establishment Clause was NOT intended to make atheism or agnosticism the national religion or to give atheists and agnostics a veto power.

Legal commentator Thomas Cooley explained in 1898: "By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring on one church of special favors and advantages which are denied to others ***. It was never intended by the Constitution that the government should be prohibited from recognizing religion, *** where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."

The notion that the American way was supposed to be the atheist way would have struck the Founders as noxious.

Thus, John Jay, an author of The Federalist Papers, the first Chief Justice of the United States and the second president of the American Bible Society, used his constitutionally protected freedom of expression to declare, "Providence has given our people the choice of their rulers, and it is the duty, as well as privilege and interest, of a Christian nation to select and prefer Christians for their rulers."

Being qualified to run for office is not an assurance of being chosen, of course.

JFK: "I believe in a President whose views on religion are his own private affair, neither imposed upon him by the nation, nor imposed by the nation upon him as a condition to holding that office."

But, religious values DO matter. The Founders expected that religious values would inform public policy and the "separation between faith and life" was condemned long ago by the Second Vatican Council as "among the more serious errors of our age."

As the Vatican's Congregation for the Doctrine of the Faith stated in its Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life: "[T]he lay Catholic's duty to be morally coherent...is one and indivisible. There cannot be two parallel lives...: on the one hand, the so-called 'spiritual life,' with its values and demands; and on the other, the so-called 'secular' life, that is, life in a family, at work, in social responsibilities, in the responsibilities of public life and in culture."

The Doctrinal Note emphasized that lay Catholics, in fulfilling civic duties, are to be "'guided by a Christian conscience,' in conformity with its values," and that "their proper task [is] infusing the temporal order with Christian values, all the while respecting the nature and rightful autonomy of that order, and cooperating with other citizens according to their particular competence and responsibility."

The Doctrinal Note categorically rejected the claims that citizens have "complete autonomy with regard to their moral choices and lawmakers...are respecting this freedom of choice by enacting laws which ignore the principles of natural ethics and yield to ephemeral cultural and moral trends, as if every possible outlook on life were of equal value."

Voters should know a candidate's attitude toward religion and religious values. They are not voting for a minister, but they need to decide who is good and who is sinister.

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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Copyright 2007 by Michael J. Gaynor
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