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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:  June 25, 2008
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Topic category:  Other/General

"I Believe" License Plates Are Constitutional

Offering choice is NOT establishing a national religion.

Raymond Arroyo, EWTN News Director, host of "The World Over With Raymond Arroyo" and biographer of Mother Angelica:

"A battle is brewing in South Carolina over a license plate featuring a cross over a stained glass window next to the words 'I Believe.' Americans United for the Separation of Church and State filed a federal lawsuit this week to prevent South Carolina from becoming the first state to offer the 'I Believe' plates to its residents. The religious police say that the state is endorsing Christianity in violation of the first amendment.

"Now, I personally have no desire to run out and purchase one of these plates, but perhaps there are faithful Christians (or religious groups) that might want one. And what is wrong with that?"

Answer: NOTHING! Like "Choose Life" license plates, they are constitutionally protected.

Mr. Arroyo: "South Carolina currently offers an 'In God We Trust' plate--is that an endorsement of religion?"

NOT an unconstitutional one!

Justice Oliver Wendell Holmes was right: "You can't understand a phrase such as 'Congress shall make no law respecting an establishment of religion' by syllogistic reasoning. Words take their meaning from social as well as textual contexts, which is why 'a page of history is worth a volume of logic.'" New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.).

America's Declaration of Independence announced the American view that people have God-given rights to life, liberty and the pursuit of happiness and rejected the divine right of kings belief. This American view rejected in advance the Marxist notion that God is a figment of man's imagination, the Obama notion that people cling to religion out of bitterness over economic status and the secular extremist notion that religion should be banned from the public square.

America has been God blessed and God grateful.

But secular extremists are assiduously pursuing their un-American agenda: ending any governmental acknowledgement of God and giving them freedom from religion in the public square. They are determined to delete "under God" from "The Pledge of Allegiance" and to remove "In God We Trust" from America's currency, coin and courthouses

America's Founders would be aghast, but the majority United States Supreme Court decision in Everson v. Board of Education, decided in 1947, misconstrued the religious clauses in such a way as to give secular extremists hope.

The 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 from 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.' Reynolds v. United States, supra, 98 U.S. at page 164."

The Supreme Court majority further stated that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers...."

To the extent that the Supreme Court asserted that governmental cannot "aid all religions" and must be neutral as between religion and irreligion, the Court essentially rewrote the religious clauses of the First Amendment while purporting to interpret it.

As The American Center for Law and Justice wrote in an amicus brief in the "In God We Trust" case: "The Establishment Clause was never intended as a guarantee that a person will not be exposed to religion or religious symbols on public property, and the Supreme Court has rejected previous attempts to eradicate all symbols of this country’s religious heritage from the public’s view. Although enterprising plaintiffs can find support for just about any proposition in the Court's multifarious Establishment Clause pronouncements, a claim that the national motto violates the First Amendment borders on frivolous."

Mr. Arroyo: "They also offer a Shriners plate—does that mean the state is endorsing the Shriners? In my state of Virginia, you can buy a 'Freemason' license plate—why isn’t Barry Lind suing over this obvious endorsement of Freemasonry? The fact is: there are a host of these specialty licenses dealing with everything from Whales to Wild Turkeys that annoy me, but people have a right to purchase them. What about that oft-mentioned freedom of choice? How about the freedom of expression guaranteed by the constitution? Offering drivers a specialty license plate is not the same as COMPELLING them to put it on their bumpers.

Exactly! And now disgraced former New York Governor Eliot Spitzer confronted that reality when, as the New York Attorney General, he tried to stop "Choose Life" license plates from being made available in New York. His subordinate, Assistant Solicitor General Jennifer Grace Miller, argued to the United States Court of Appeals for the Second Circuit that "Choose Life" are incendiary words that could lead to road rage. And one judge (Dennis Jacobs) actually agreed, suggesting that allowing the phrase could open the door to messages from extremist groups. His position: if the pro-lifers win, "then white supremacist organizations and the Ku Klux Klan can have license plates. There'd be a lot of road rage following that."

"This case should be of great interest and concern to all New Yorkers, whether they are pro-life or not, because New York has always vigorously defended freedom of speech and equal treatment under the law for every citizen, not just some, " said Dr. Elizabeth Rex, President of The Children First Foundation, the successful champion of Choose Life license plates.


New York State argued, in a written submission to the appeals court, that the Children First Foundation's plate was rejected in order "to avoid any appearance of governmental support for either side in the divisive national abortion debate."

So the First Amendment calls for suppressing all divisive speech, but we can say anything and as much of what we want about those matters on which we all agree? That turns the free speech clause of the First Amendment on its head! Free speech means vigorous public debate. Not government-enforced silence! All of us don't agree on anything (except perhaps that we don't agree on everything).

The New York State DMV had approved over 200 plates for organizations including labor unions, and religious organizations.

So New York State was picking and choosing. Not every New Yorker approved of every one of those organizations, of course.

Mr. Arroyo: "Government giving citizens a choice—even a mildly religious one--is no sin. And it certainly does not violate the intentions of the Framers."

Certainly not! Offering choice is NOT establishing a national religion.

Fortunately, the Second Circuit dismissed the attempt to ban the phrase 'Choose Life' from a pro-adoption specialty plate.

In January, 2005, a federal judge had ruled that The Children First Foundation (CFF) had sufficiently argued that its First Amendment rights would be violated.

Spitzer appealed the federal court ruling to the Second Circuit, to no avail.

Upon reflection, the three-judge Second Circuit panel agreed with CFF.

Dr. Rex declared: "This ruling is another great victory for freedom of speech and equal treatment under the law for all New Yorkers."

South Carolinians will have such a great victory too if Barry Lind pursues his frivolous case.

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,,, and 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

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