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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:  January 7, 2009
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Laura Ingraham v. Michael Newdow on Public God Reference

The First Amendment means that an atheist or agnostic cannot be compelled to say "So help me God" or "under God." It does NOT mean that "So help me God" must be banned in public oaths, "In God We Trust" must be removed from the currency and courtroom walls, and "under God" must be removed from "The Pledge of Allegiance." 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.

On January 5, 2009, Laura Ingraham hosted on her radio show Dr. Michael Newdow, described on Laura's website as "one of America's preeminent atheists,' to discuss "his latest quest: to remove the phrase 'so help me God' from the presidential oath of office."

Laura deftly described the interview as a type of innoculation against a possible "fairness doctrine" problem and amusingly apologized for her "complicity" in feeding Dr. Newdow's apparent need for public attention, but Laura and her callers effectively exposed Dr. Newdow during the interview, meaning the interview was a good thing for which Laura had no need to apologize.

Predictably, Dr. Newdow claimed to be championing equality and charged Laura (and implicitly the millions who agree with her) with championing inequality.

Dr. Newdow's astonishing argument is that allowing Chief Justice John Roberts to say "So help me God in administering the oath of office to President-Elect Barack Hussein Obama, Jr. is akin to mandating separate but equal water fountains for "colored" and "white"!

Laura noted that Dr. Newdow had previously failed to have "So help me God" banned at presidential inaugurations and inquired why he thought he should be found to have standing to object this time. The only alleged "harm" to himself that Dr. Newdow identified was that he would be made to feel less than equal if Chief Justice Roberts said "So help me God" in administering the oath.

An astute caller made the point that Dr. Newdow was treating a mere mention of God as an unconstitutional "establishment" of religion and she was absolutely right.

But for a monumental mistake by the United States Supreme Court in 1947 in misruling that the United States and the States must be neutral as between religion and irreligion and refrain from supporting "all religions," Dr. Newdow (an emergency room physician) would not have received a forum as prestigious as Laura's radio show to talk at length about his quest to ban references to God at presidential inaugurations and in "The Pledge of Allegiance" and in courthouses.

Dr. Newdow contends that such phrases as "In God We Trust" in courthouses "So help me God" in public oaths and "under God" in "The Pledge of Allegiance" demean atheists.

In essence, Dr. Newdow's position is that even a single atheist should be empowered to prohibit the use of those phrases in those contexts, because the use of those phrases either establish, or tend to establish, religion in violation of the First Amendment.

The First Amendment actually states in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

Tragically, the United States Supreme Court, by judicial fiat, grossly exceeded the institutional separation between church and state that America's Founders intended in a way that the religious men of various denominations who drafted and ratified the United States Constitution never envisioned.

The United States Constitution does not require complete separation of church and state, prevent the United States government from acknowledging God and supporting religion generally, or compel the United States government and state governments to be strictly neutral as between religion and "irreligion."

In 1947, however, in Everson v. Board of Education, the United States Supreme Court disregarded history and misconstrued the Constitution at the urging of the secular extremist minority and the expense of the overwhelming religious majority in ruling that neither federal nor state governments "can pass laws which aid...all religions...."

In so ruling, the Court presumptuously substituted its personal view for the views of those who founded the United States, wrote and ratified the Articles of Confederation and the Constitution, and adopted the First Amendment and misused a much-quoted letter in which Thomas Jefferson had described the First Amendment as "building a wall of separation between church and state."

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 Godless minority.

Traditional nonsectarian acknowledgements of God by federal or state government, including the inclusion of "under God" in "The Pledge of Allegiance" and "In God We Trust" on United States currency, the recitation of a voluntary nondenominational prayer in a public school, and the display of a Ten Commandments monument in both federal and state courthouses, were intended to be constitutionally permissible, and coercive or sectarian governmental acts that establish a religion or prohibit or penalize the free exercise of religion (or personal choice NOT to be religious) were intended to be unconstitutional.

In 1823, Thomas Jefferson opined in a private letter how constitutional meaning should be ascertained: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it passed."

The initial United States Supreme Court decisions adopted the same approach.

In M'Culloch v. Maryland (1819), Jefferson's cousin, Chief Justice John Marshall, noted that the United States government "is acknowledged by all to be one of enumerated powers," but that "there is no phrase in [the Constitution] which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described."

In Gibbons v. Ogden (1824), Marshall endorsed natural construction of the Constitution, since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

In Ogden v. Saunders (1827), Marshall noted that "the intention of the instrument must prevail" and "be collected from its words," "its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended," and "its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers...."

The Founders 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.

America's Declaration of Independence, Articles of Confederation and 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 intended 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 be preferring 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 had been clear on that.

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 secular extremist notion that public recognition of God and support for religion generally must yield to "the right of private judgment" of an atheist minority 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."

According to 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."

The Constitution explicitly proscribed any religious test as a requirement for holding an office or a position of public trust under the United States 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.

This generally unappreciated historical record reveals the error of the Supreme Court's way.

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.'"

The First Amendment means that an atheist or agnostic cannot be compelled to say "So help me God" or "under God." It does NOT mean that "So help me God" must be banned in public oaths, "In God We Trust" must be removed from the currency and courtroom walls, and "under God" must be removed from "The Pledge of Allegiance."

In the mid nineteenth century, Congress rejected a secular extremist 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 its members 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."

Dr. Newdow may consider even a mention of God in a governmental context as an establishment of religion and a personal affront, but that does not justify redefining 'establishment of religion" to please him.

In misinterpreting the establishment clause, the United States 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 United States Supreme Court 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 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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