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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:  December 5, 2007
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Topic category:  Other/General

Mitt Romney: Right for America

Mr. Romney's values are right for America and he's running for President, not Pastor. Voters should realize that, but it is for the voters to decide.

A Mormon may or may not make a good President.

It depends upon the individual Mormon, of course.

Republican presidential hopeful Mitt Romney's views differ greatly from Senate Majority Leader Harry Reid, yet each is a Mormon.

The point: like others, Mormons must be considered as individuals.

Republican Mitt Romney, yes. Democrat Harry Reid, no.

Referring to America's Founders, Mr. Romney declared: "[T]he authors of liberty recognized a divine Creator who bequeathed to us certain inalienable rights. They affirmed freedom of religion, and they proscribed the establishment of any one religion."

Exactly!

Mr. Romney did NOT assert that there is supposed to be absolute separation of church and state, because the Founders surely did not want that. They worshipped God, not government. Even Thomas Jefferson and James Madison attended religious services in the United States Capitol after their presidential inaugurations.

As United States Supreme Court Justice Joseph Story explained in his Commentaries on the Constitution: "Probably at the time of the adoption of the Constitution, and of the amendment 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," 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: "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."

The Founders' Constitution provided for an institutional separation of church and state, by banning any religious test for a federal office or public trust. But the Founders expected religious values to inform public policy, not to be banned together with God from the public square.

On October 5, 2006, Mr. Romney warned: "[T]oday there are some people who are trying to establish one religion: the religion of secularism. They not only reject traditional values, they reject the values of our founders and they cast aside the wisdom of the ages."

Exactly.

Mr. Romney concluded: "This spreading secular religion and its substitute values cannot be allowed to weaken the foundation of the family, or the faith of our fathers who 'more than life, their country loved.'"

Fittingly, Mr. Romney will deliver his much anticipated speech on religion that day after the Ninth Circuit Court of Appeals heard argument in a case pursued by an atheist determined to have "under God" removed from "The Pledge of Allegiance" and "In God We Trust" from the national currency and coin.

Mr. Romney's values are right for America and he's running for President, not Pastor.

Voters should realize that, but it is for the voters to decide.

THE CONSTITUTION PROHIBITS GOVERNMENT FROM ESTABLISHING A RELIGION OR IMPOSING A RELIGIOUS TEST TO QUALIFY FOR "ANY OFFICE OR PUBLIC TRUST UNDER THE UNITED STATES," BUT IT DOES NOT PRESUME TO TELL VOTERS WHAT THEY MAY OR MAY NOT CONSIDER IN DECIDING WHETHER OR NOT TO VOTE AND FOR WHOM TO VOTE IF THEY CHOOSE TO VOTE.

The final paragraph of Article VI of the Constitution states: "The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

That means the Constitution prohibits a religious test for "any Office or public Trust under the United States."

It does NOT mean that a voter is prohibited from preferring or rejecting a candidate based upon religious considerations.

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.

But, as the United States Supreme Court stated in Torcaso v. Watkins, 367 U.S. 488 (1961) (which held that a Maryland religious test for public office cannot be enforced because it unconstitutionally invades the freedom of belief and religion guaranteed by the First Amendment and protected by the Fourteenth Amendment from infringement by the States): "We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person 'to profess a belief or disbelief in any religion.' Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."

Restrictions on government are not restrictions of individuals, however. Under the reasoning used in Torcaso, government cannot constitutionally force a person to disregard his or her religious beliefs and ignore the religious beliefs and values of candidates.

Founder Oliver Ellsworth, a Connecticut delegate to the Constitutional Convention, explained that the clause prohibiting any religious test was NOT intended to undermine religious values.

The clause contemplates the situation of a person about to assume office, sets forth the requirement that the person, by oath or affirmation, commit to support the Constitution, and prohibits a religious test.

Ellsworth explained that a test "requiring all persons appointed to office to declare, at the time of their admission, their belief in the being of a God, and in the divine authority of the Scriptures," even though "it may be said that one who believes these great truths will not be so likely to violate his obligations to his country as one who disbelieves them" and therefore "we may have greater confidence in his integrity," was rejected because (1) England's experience with religious tests showed that "[t]he most abandoned characters partake of the sacrament in order to qualify themselves for public employments," (2) "the most sacred office of religion" should not be "thus prostitute[d]," and (3) "making a declaration of such a belief is no security at all," because it is "easy...to dissemble" for "an unprincipled man who believes neither the Word nor the being of God" and is "governed merely by selfish motives."

Ellsworth explained that "this clause is [not] unfavorable to religion" and its "sole purpose and effect..is to exclude persecution and to secure...the important right of religious liberty."

Ellsworth then explained what that means and does not mean: "In our country every man has a right to worship God in that way which is most agreeable to his conscience. If he be a good and peaceable person, he is liable to no penalties or incapacities on account of his religious sentiments; or, in other words, he is not subject to persecution."

The Founders' plan was to protect the private right of conscience of "good and peaceable" people, not to give atheists a veto power over governmental acknowledgement of God and support for religion generally" or to restrict voters from taking religion into accounting in deciding for whom to vote.

Mr. Romney must depend upon the fairmindedness of the America people and pray that God provides enough fairminded voters.

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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