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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:  August 25, 2008
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Topic category:  Other/General

Dems Dissing Faithful Catholics Again

“Fidelis warned late last month that a pro-abortion Catholic choice as a vice presidential candidate would offend many Catholics who have struggled with the scandal of prominent pro-abortion Catholic politicians like Senator Biden."

In 2004, the Democrats nominated an apostate Catholic (Senator John Kerry of Massachusetts) for President. He had sold his soul to the abortion industry and he lost both the election and the Catholic vote. (The two other Catholics whom the Democrats had nominated for President, Governor Al Smith of New York in 1928 and then Senator John F. Kennedy of Massachusetts in 1960, had won, respectively, approximately 80% and 78% of the Catholic vote.)

This year rookie United States Senator and presumptive Democrat presidential candidate Barack Hussein Obama, Jr., a man who claims to have rejected Islam and atheism and instead embraced the black liberation theology of Rev. Jeremiah A. “God damn America” Wright, Jr., picked pro-choice Senator Joseph Biden of Delaware to be his running mate.

Steven Ertelt, Editor, in “Barack Obama Picks Long-Time Abortion Advocate Joe Biden as Running Mate” (

“Barack Obama…selected one of the Senate's most ardent abortion advocates as his vice-presidential running mate. In Joe Biden, Obama has someone whose abortion views mirror his own -- by supporting unlimited abortions and wanting judges who will keep all abortions legal 35 more years.

”Obama has been under fire for weeks for his strongly pro-abortion views -- favoring taxpayer-funded abortions, opposing a partial-birth abortion ban, and opposing a bill in the Illinois legislature that would protect newborns who survive abortions. Choosing Biden as his running mate won't help him moderate those views that are clearly out of step with most Americans.

“Biden is a fierce abortion proponent and someone who has made a reputation out of badgering Supreme Court nominees about abortion during confirmation hearings.

“In fact, before he dropped out of the Democratic primary race Obama eventually won, Biden confirmed he would have a pro-abortion litmus test for his own possible judicial picks.”

Mr. Ertelt, in “Joe Biden Makes It Easier for Catholics to Oppose Pro-Abortion Barack Obama” (

“A pro-life Catholic group says it will be easier for Catholic voters to reject Barack Obama as president now that he has strong abortion advocate Joe Biden on board. Although some pundits say Biden is an Irish Catholic who will help Obama in states like Pennsylvania, Brian Burch says he will turn off voters.

“Burch, the head of the pro-life organization Fidelis, tells that Biden's pro-abortion views, like Obama's, pose a major challenge for American Catholics.

“Fidelis warned late last month that a pro-abortion Catholic choice as a vice presidential candidate would offend many Catholics who have struggled with the scandal of prominent pro-abortion Catholic politicians like Senator Biden.

“'Barack Obama has re-opened a wound among American Catholics by picking a pro-abortion Catholic politician,’ Burch said.

"'The American bishops have made clear that Catholic political leaders must defend the dignity of every human person, including the unborn. Sadly, Joe Biden’s tenure in the United States Senate has been marked by steadfast support for legal abortion,’ he added.”

Mr. Ertelt added:

“Biden's own bishop, Bishop Michael Saltarelli of Wilmington, Delaware, has said that the issues pertaining to the sanctity of human life are the ‘great civil rights issues of this generation.’

“Bishop Saltarelli denounced the notion that politicians like Biden can 'personally oppose' abortion, but refuse to pass laws protecting the unborn.

"’No one today would accept this statement from any public servant: “I am personally opposed to human slavery and racism but will not impose my personal conviction in the legislative arena.” Likewise, none of us should accept this statement from any public servant: “I am personally opposed to abortion but will not impose my personal conviction in the legislative arena,”’ said Bishop Saltarelli.

“In fact, Bishop Saltarelli made clear that pro-abortion Catholic politicians should refrain from receiving the Eucharist.

"’The promotion of abortion by any Catholic is a grave and serious matter. Objectively, according to the constant teaching of the Scriptures and the Church, it would be more spiritually beneficial for such a person to refrain from receiving the Body and Blood of Christ. I ask Catholics in this position to have the integrity to respect the Eucharist, Catholic teaching, and the Catholic faithful,’ he said.”

America’s Founders rejected the idea of a national religion, but NOT the idea that faith would inform political views.

Matthew J. Franck, professor and chairman of political science at Radford University in Virginia, where he has taught American politics, constitutional law, and political philosophy since 1989, author of Against the Imperial Judiciary (1996) and co-author and co-editor (with Richard G. Stevens) of Sober As a Judge (1999), in “Saddleback and Separation,” posted as a Bench memo at Natrional Review Online:

”At church on Sunday, a friend who immigrated from France many years ago approached me to express amazement at what had happened the night before at Rick Warren's Saddleback Church. It would have been unthinkable, he said, even for (the dwindling numbers of) devout Christians in France, that candidates for the nation's highest office should appear in a church to be interviewed by its pastor for a national television audience. I replied that while the particulars of the Saddleback Forum (i.e., its dual-interview format) were unprecedented, the event was well within an American tradition of political activity by people of faith and their religious leaders, and of presidential candidates appealing to such people as important sectors of the voting public. No established church, to be sure (we Americans taught the world that one)—but no chasm, either, between religious sensibilities and political ones.”

Professor Franck noted: “Jefferson wrote, ‘can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not be violated but with his wrath?’”

Responding to criticism of the Saddleback Forum based on “McCain and Obama chatting individually with a preacher in a public forum about their positions on evil and their relationship with Jesus Christ,” Professor Franck stated:

“Sorry, it didn't trouble me. A frank discussion of the existence of evil is a welcome thing, in my opinion. And since McCain and Obama are both declared Christians, a pastor's questions about their faith do not seem out of bounds to me. Presumably Rick Warren would not harangue a Catholic candidate about Marian devotion, or try to convert a Jewish or Muslim candidate. I can't see the harm in the line of questioning he took with these two candidates—and it was certainly up to each man to decide how ‘confessional’ he wanted to be on national television….

“For years, those seeking the presidency have appeared in churches and before religious audiences, giving prepared speeches aimed at establishing that they and their audience are on the same page where worldly matters are concerned. Warren invited McCain and Obama to do something tougher than that—to take questions that would, perhaps more reliably, elicit the same information. Before the forum, not knowing much about Rick Warren, I wondered how it would go. I'd say now that it went very well. Maybe next they can be interviewed by Raymond Arroyo of EWTN, or by talk radio's Dennis Prager or Michael Medved, who might be said to represent other sectors of religiously motivated voters.”

I’d love to watch Mr. Arroyo, EWTN’s News Director and host of “The World Over With Raymond Arroyo” doing the interviewing, but I doubt Obama would do it (especially after McCain’s Saddleback Forum triumph).

Professor Franck then took time to explain the much misunderstoof constitutional ban on a religious test for office, as follows: “The Constitution, of course, forbade religious tests for public office even before the First Amendment was added. But this was all about forbidding the government from imposing any legal bar to a person's eligibility to office on religious grounds. It was not about forbidding the governed, when they elect public officials, to take a candidate's spiritual health into account. Examples as various as Thomas Jefferson, Abraham Lincoln, and Ronald Reagan suggest that Americans are perfectly capable of assessing such matters without invidiously discriminating against candidates with fairly tenuous connections (if any) to any particular church. Part of the religious freedom we prize is the freedom to vote on religiously motivated grounds; part of the responsibility that comes with that freedom is the obligation not to vote on narrowly sectarian grounds. Americans have done pretty well with that whole package.”


Professor Franck: “Was the Saddleback Forum a step away from the American tradition of balancing religious freedom, non-establishment, and a concern for the moral and spiritual condition of the country and its leaders? On the contrary, I think it was comfortably within that tradition.”


The martyred Saint Thomas More is the Patron of Statesmen and Politicians. He gave witness to “the inalienable dignity of the human conscience,” by refusing to compromise, never forsaking the “constant fidelity to legitimate authority and institutions” which distinguished him, teaching by his life and his death that “man cannot be separated from God, nor politics from morality.”

The "separation between faith and life" used for political advantage by the pro-abortion forces was condemned long ago by the Second Vatican Council: “This split between the faith which many profess and their daily lives deserves to be counted among the more serious errors of our age."

As the 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 lamented that “[a] kind of cultural relativism exists today, evident in the conceptualization and defence of an ethical pluralism, which sanctions the decadence and disintegration of reason and the principles of the natural moral law.” It 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.” And the Doctrinal Note observed that “the value of tolerance is disingenuously invoked when a large number of citizens, Catholics among them, are asked not to base their contribution to society and political life – through the legitimate means available to everyone in a democracy – on their particular understanding of the human person and the common good,” and concluded that “[t]he history of the twentieth century demonstrates that those citizens were right who recognized the falsehood of relativism, and with it, the notion that there is no moral law rooted in the nature of the human person, which must govern our understanding of man, the common good and the state.”

The Doctrinal Note distinguished legitimate and illegitimate freedom. It explicitly respected “the legitimate freedom of Catholic citizens to choose among the various political opinions that are compatible with faith and the natural moral law, and to select, according to their own criteria, what best corresponds to the needs of the common good.”

“Political freedom is not – and cannot be – based upon the relativistic idea that all conceptions of the human person’s good have the same value and truth,” the Doctrinal Note proclaimed. “Rather,” the Doctrinal Note continued, “it is based on the fact that politics are concerned with very concrete realizations of the true human and social good in given historical, geographic, economic, technological and cultural contexts. From the specificity of the task at hand and the variety of circumstances, a plurality of morally acceptable policies and solutions arises. It is not the Church’s task to set forth specific political solutions – and even less to propose a single solution as the acceptable one – to temporal questions that God has left to the free and responsible judgment of each person. It is, however, the Church’s right and duty to provide a moral judgment on temporal matters when this is required by faith or the moral law.”

The Doctrinal Note rejected moral relativism and related the essential basis of democracy in the clearest terms: “If Christians must ‘recognize the legitimacy of differing points of view about the organization of worldly affairs,’ they are also called to reject, as injurious to democratic life, a conception of pluralism that reflects moral relativism. Democracy must be based on the true and solid foundation of non-negotiable ethical principles, which are the underpinning of life in society.”

With respect to abortion, the Doctrinal Note was categorical: “John Paul II, continuing the constant teaching of the Church, has reiterated many times that those who are directly involved in lawmaking bodies have a ‘grave and clear obligation to oppose’ any law that attacks human life. For them, as for every Catholic, it is impossible to promote such laws or to vote for them.”

A faithful Catholic politician may not compromise on fundamental matters. “When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person. This is the case with laws concerning abortion and euthanasia (not to be confused with the decision to forgo extraordinary treatments, which is morally legitimate). Such laws must defend the basic right to life from conception to natural death.”

The Catholic faith informs a Catholic’s participation in every sphere of life, not only in religious services. Thus, the Second Vatican Council urged all Christians “to fulfill their duties faithfully in the spirit of the Gospel” and warned that “[i]t is a mistake to think that, because we have here no lasting city, but seek the city which is to come, we are entitled to shirk our earthly responsibilities; this is to forget that by our faith we are bound all the more to fulfill these responsibilities according to the vocation of each....” It called for Christians to cherish “the opportunity to carry out their earthly activity in such a way as to integrate human, domestic, professional, scientific and technical enterprises with religious values, under whose supreme direction all things are ordered to the glory of God.”

Talismanic invocation of the words “separation of church and state” does not immunize from responsibility for the sin of promoting abortion and confusing As stated in the Doctrinal Note:

“It would be a mistake to confuse the proper autonomy exercised by Catholics in political life with the claim of a principle that prescinds from the moral and social teaching of the Church.

“By its interventions in this area, the Church’s Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding contingent questions. Instead, it intends – as is its proper function – to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good. The social doctrine of the Church is not an intrusion into the government of individual countries. It is a question of the lay Catholic’s duty to be morally coherent, found within one’s conscience, which is one and indivisible. ‘There cannot be two parallel lives in their existence: 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 branch, engrafted to the vine which is Christ, bears its fruit in every sphere of existence and activity. In fact, every area of the lay faithful’s lives, as different as they are, enters into the plan of God, who desires that these very areas be the “places in time” where the love of Christ is revealed and realized for both the glory of the Father and service of others. Every activity, every situation, every precise responsibility – as, for example, skill and solidarity in work, love and dedication in the family and the education of children, service to society and public life and the promotion of truth in the area of culture – are the occasions ordained by providence for a “continuous exercise of faith, hope and charity” (Apostolicam actuositatem, 4).’ Living and acting in conformity with one’s own conscience on questions of politics is not slavish acceptance of positions alien to politics or some kind of confessionalism, but rather the way in which Christians offer their concrete contribution so that, through political life, society will become more just and more consistent with the dignity of the human person.”

The truth is that the United States Constitution does not require complete separation of church and state.

The words “separation of church and state” do not appear in the First Amendment. In a much-quoted letter Thomas Jefferson described the First Amendment as “building a wall of separation between church and state.” But the First Amendment did not create a wall between church and state. It prohibited Congress from making “a law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The kind of separation that was intended is suggested by Pierre L’Enfant’s plan for a national cathedral. In 1791, Congress selected the site to be the capital of the United States. George Washington, previously President of the Constitutional Convention and then President of the United States, then commissioned L'Enfant to design an overall plan for the future seat of government. That plan included a church "intended for national purposes, such as public prayer, thanksgiving, funeral orations, etc., and assigned to the special use of no particular Sect of denomination, but equally open to all." The Founders and Framers favored governmental neutrality among denominations, but they never expected government to be barred from supporting religion generally to please a tiny minority.

The Founding Fathers were Christians, not secular humanists. John Adams wrote in 1813 that “[t]he general principles, on which the Fathers achieved independence, were . . . the general principles of Christianity . . . .” America’s greatest chief justice, John Marshall, proclaimed 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.” Marshall’s statement was not literally true, of course; Americans were not even then entirely Christian. But Marshall’s point was that Americans were a people of faith and their government should recognize it.

When Jesus spoke of rendering unto Caesar that which is Caesar’s and rendering unto God that which is God’s, He was identifying separate obligations of individuals in society, not requiring complete separation of church and state or absolving states of their duty to God. This was generally understood and accepted. Therefore, the Declaration of Independence, the Articles of Confederation, and the Constitution each recognized God and the Articles and Constitution were dated “in the year of our Lord.”

The First Amendment did not prohibit government from acknowledging God or supporting religion generally. Only coercive or sectarian governmental acts that establish a particular faith or prohibit the free exercise of any faith were barred. And Jefferson’s “wall” was to keep government from interfering with that religious expression without excluding religious expression from public life.

Justice William Douglas put it well in Zorach v. Clauson (1952), in upholding a public school “released time” program: “We are a religious people whose institutions presuppose a Supreme Being. . . . 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 prefer those who believe in no religion over those who do believe. . . . [W]e 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 late Chief Justice William Rehnquist rightly asserted in dissent in Wallace v. Jaffree (1985) that the establishment clause was intended only to stop the federal government from establishing a national church or preferring one sect over another, and certainly not to require governmental neutrality between religion and “irreligion.”

The leading legal commentators of the nineteenth century did not doubt this.

Thomas Cooley, in Constitutional Limitations, stated that recognition of God and general support for religion were 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.”

Cooley concluded, “No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures; or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation.” Cooley emphasized that 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,” he wrote, is based on “the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction.”

This attitude prevailed when the first Congress passed both the First Amendment and the Northwest Ordinance of 1787, which explicitly integrated religion and public education. Article III of the ordinance states: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Two years later George Washington warned, “Let us with caution indulge the supposition, that morality can be maintained without religion.”

The signers of the Declaration of Independence, the Framers of the Constitution, and the members of the first Congress and the state legislatures that enacted and ratified the First Amendment humbly recognized their dependence upon God. In lamenting the absence of daily prayers during the Constitutional Convention, Benjamin Franklin asked: “[H]ow has it happened . . . that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? . . . [H]ave we now forgotten that powerful friend? Or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth—that God governs in the affairs of men. . . . We have been assured . . . in the sacred writings, that ‘except the Lord build the House they labour in vain that build it.’”

The Declaration humbly appeals to “the Supreme Judge of the world” and proclaims “a firm reliance on the Protection of Divine Providence,” as well as referring to “the Laws of Nature and of Nature’s God” and a “Creator” who endowed “all men . . . with certain inalienable Rights.”

The Constitution not only refers to “the Blessings of Liberty” in its preamble, but excludes Sundays in calculating the time in which a presidential veto must be issued. Further, it deliberately integrates religion into public affairs, while not compelling the unreligious to practice faith, by providing for oaths or affirmations. If the Framers had intended to separate church and state completely and embrace secularism, then they would have provided only for affirmations.

The First Amendment was adopted to afford atheists a right to not recognize God, to be sure, but not to give them a right to preclude government from doing so or from supporting religion generally—as the seminal Commentaries on the Constitution (1833) by Justice Joseph Story show.

Justice Story explained that the First Amendment’s object was “to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment….” “[T]he duty of supporting religion,” 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.”

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.”

The current notion that public recognition of God and support for religion generally must yield to “the right of private judgment” surely would have been absurd to Justice Story. In his view, “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.”

Justice Story:“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.”

This unappreciated historical record reveals the error of the Supreme Court’s ways. In its zeal to purge the public square of endorsements and even accommodations of religion, the Court has construed the Constitution’s ban on “an establishment of religion” much too broadly and thereby paved the way for lower courts to strike down the Pledge of Allegiance and to order the removal of a Ten Commandments monument from the lobby of an Alabama courthouse (while leaving undisturbed the U.S. Supreme Court’s own Ten Commandments display).

After World War II, the U.S. Supreme Court arbitrarily extended the First Amendment’s establishment clause, by judicial invention, to separate church and state in a way that inhibits the free exercise of religion required by the First Amendment’s free exercise clause but provides freedom from religion to the unreligious minority. THAT surely was not contemplated by the men who drafted and ratified the Constitution and the First Amendment, and would not have been comprehensible to them.

America was not conceived of by those men as a theocracy or a secular state, but as “one nation, under God.” The notion that under the Constitution the U.S. government cannot acknowledge God and instead must maintain a strict neutrality between religion and irreligion would have been considered absurd by virtually all the Founders, Framers, members of the First Congress and members of the state legislatures that ratified the First Amendment. As Justice Stanley Reed related in rejecting the overbroad meaning given to the “Establishment Clause”: “When the First Amendment was pending in Congress in substantially its present form, ‘Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.’”

To be sure, the Constitution explicitly proscribed any religious test as a requirement for holding an office or a position of public trust under the U.S. government. But the Constitution was framed by Christian men who recognized the dependence upon religion of the government created by the Constitution as well as God. Rightly or wrongly, these people strongly believed that religion was essential to good government.

As President John Adams put it: “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.”

Framer Gouvernor Morris explained why: “Religion is the only solid Base of morals and Morals are the only possible Support of free governments.” On that basis, Morris called for education to “teach the precepts of religion, and the duties of man to God.”

The Continental Congress drafted the Articles of Confederation in 1777. They went into effect in 1781. Article II specified that Congress obtained only those powers and rights “expressly delegated” to it. The only express reference to religion was in Article III, which bound the Confederation to defend any state attacked “on account of religion….” But the Articles did state that “it has pleased the Great Governor of the world [God] to incline the hearts of the legislatures [represented by the drafters] to approve of, and to authorize [them] to ratify the said Articles….” Notwithstanding the absence of express authority to concern itself with religion, the Continental/Confederation Congress did so without objection. It promoted a nondenominational Christianity. In 1777 the Congress ordered 20,000 Holy Bibles for distribution among the states. It appointed chaplains for itself and the armed forces (in a manner designed to prevent any denomination from monopolizing government patronage), granted public lands to promote Christianity among the Indians, and periodically proclaimed national days of thanksgiving and of “humiliation, fasting and prayer” as the Revolutionary War proceeded. In 1776, it called for the people, “by a sincere repentance and amendment of life, to appease [God’s] righteous displeasure, and through the merits of Jesus Christ, [to] obtain his pardon and forgiveness.” Six years later, it issued a Thanksgiving proclamation calling on the people “to testify their gratitude to God for his goodness, by a cheerful obedience to his laws, and by promoting, each in his station, and by his influence, the practice of true and undefiled religion, which is the great foundation of public prosperity and national happiness.” Earlier that year, it had officially recommended a Bible edition prepared by Robert Aitken (the first English language Bible published in North America) “to the inhabitants of the United States.”

The First Congress envisioned an institutional separation of church and state, but it did not expect complete separation of church and state. The state was not to interfere with religion, but religion was expected to be part of public life. The First Congress resolved that the chaplain policy of the prior Congress be continued. It approved the First Amendment’s religious clauses to prohibit the establishment of a national church or the disestablishment of any church and to protect the right of conscience of all individuals, not to turn away from God and embrace secular humanism.

In 1789 the First Congress also re-passed the Northwest Ordinance, originally adopted two years earlier under the Articles of Confederation. The first article of that ordinance set forth the guarantee of religious freedom that was intended under the First Amendment as well: “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.” The third article expressly encouraged public schools, because “[r]eligion, morality, and knowledge [are] necessary to good government and to the happiness of mankind.” Patently, religious freedom was conceived of as a shield for all peaceful people and not as a sword for any minority to use to block the government from recognizing God and supporting religion generally. In the mid nineteenth century, Congress considered a challenge to the constitutionality of the military chaplaincy. After careful study, the Senate Judiciary Committee issued a report explaining the establishment clause: “The clause speaks of ‘an establishment of religion.’ What is meant by that expression? It referred, without doubt, to the establishment which existed in the mother country; its meaning is to be ascertained by ascertaining what that establishment was. It was the connection with the state of a particular religious society, by its endowment, at public expense, in exclusion of, or in preference to, any other, by giving to is member’s exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided….” The report further stated that the Founders were “utterly opposed to any constraint upon the rights of conscience” and therefore they opposed the establishment of a religion in the same manner that the church of England was established. But, the Founders “had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people….They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of ‘atheistic apathy.’ Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted.”

A similar House Judiciary Committee report explained that “an establishment of religion” was a term of art with a specific meaning: “What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rights and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an establishment of religion without all these.” The person most likely to know what the First Amendment was intended to mean probably was George Washington, the Father of the Country, President of the Constitutional Convention and first President of the United States under the Constitution. In 1789, at the urging of Congress, President Washington issued a Thanksgiving Proclamation. It stated that “it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor.” There was no caveat to the effect that there was a higher duty to refrain if an atheist claimed that his or her sensibilities would be offended by such actions and he or she would feel like a second-class citizen. The joint purpose of Washington and the First Congress was "to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:" The Pledge of Allegiance had not yet been written, but Washington and the First Congress obviously perceived the United States as a nation “under God.

”Accordingly, Washington designated a day for devotion to God, acknowledged God as “that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be,” and called upon all Americans to “unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been able to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.”

Washington and the First Congress would have been incredulous to learn that their actions ever would be considered to be unconstitutional. After all, the Constitution had been established to secure “the Blessings of Liberty” and the federal government was calling upon all Americans to “unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations” for the purpose of having God “pardon our national and other transgressions,”“enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually,” and “render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws discreetly and faithfully executed and obeyed” as well as “to protect and guide all sovereigns and nations (especially such as have show[n] kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as H alone knows to be best.”

In misinterpreting the establishment clause, the U.S. Supreme Court misused a statement by Thomas Jefferson in an 1802 letter to a Baptist group that “the whole American people…declared that their legislature should make no law respecting an establishment of religion, or prohibit the free exercise thereof, thus building a wall of separation between church and state.” Jefferson’s much quoted statement has been misinterpreted as a prohibition against government acknowledging God and supporting religion generally instead of only a protection of churches from governmental interference. But the “wall of separation” that Jefferson contemplated was a wall that keeps government from interfering with religious freedom, not a wall that keeps any religious expression out of schools, courthouses and other public places. Jefferson’s own preamble to the Virginia Statute of Religious Freedom explicitly acknowledged "Almighty God" as "the Holy Author of our religion" and "Lord both of body and mind."

Jefferson did not envision that the institutional separation he had in mind would ever be expanded to prohibit the United States from making reasonable accommodations to religion and recognizing God on its currency, in its courts or in its classrooms. Jefferson’s own actions as President demonstrate that his words were misinterpreted. As President, Jefferson attended voluntary and nondiscriminatory religious services held at the Capitol (as did President Madison). In 1803, Jefferson called on Congress to approve a treaty with the Kaskaskia Indians that provided for the United States to pay a Catholic missionary priest $100 a year. It was not an oversight. Jefferson later recommended two other Indian treaties with similar provisions. Jefferson also extended three times a pre-Constitution act that had designated lands “[f]or the sole use of Christian Indians and the Moravian Brethen missionaries for civilizing the Indians and promoting Christianity.” If the U.S. Supreme Curt was right, then Jefferson himself repeatedly violated the establishment clause. But, as the House Judiciary Committee report set forth in detail, “an establishment of religion” requires much more.

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.

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