Topic category:  Other/General

On June 7, 2006, Hoppy Kercheval, Talkline host of Metro News ("The Voice of West Virginia"), wrote about something the ACLU considers a danger to the Republic--the presence of a portrait of Jesus Christ in a public school (Bridgeport High School) near the principal's office--and the effort to compel its removal. Bridgeport, population 7,400, is located in north central West Virginia and home to more than a dozen churches.

Mr. Kercheval pointed how how separated the ACLU is from the people:

"I suspect if you asked everyone in Harrison County if they believe it’s OK for a portrait of Jesus Christ to hang in a school, most would say 'yes.' West Virginia is a place of deep religious beliefs that are mostly Christian.

"Jesus was, after all, a teacher whose messages are as applicable today as they were 2000 years ago. But the portrait of him at Bridgeport High School has raised yet another in a long series of disputes in this state and our country about the entanglements of government and religion."

Mr. Kercheval described the status of the matter at the time:

"Last night, the Harrison County School Board met to review complaints filed by a Harrison County attorney, the American Civil Liberties Union of West Virginia and Americans United for the Separation of Church and State. They claim the portrait on display outside the principal’s office is unconstitutional.

"The motion to remove the portrait failed on a 2-2 tie vote.

"The complaint has spawned rallies in support of the portrait. One drew an estimated 400 people. Newly elected school board member Mike Queen, who joins the board next month, has gotten the American family Association—a national Christian organization—involved in the fight."

In addition, Mr. Kercheval offered his evaluation of the matter:

"Supporters of the portrait argue that the establishment clause of the First Amendment protects the free exercise of religion. Indeed it does. But the First Amendment also warns of entanglements of government and religion.

"The eternally debatable question is how much of a mingling of the two is allowed? Overt proselytizing in a school is clearly a violation of the evolved doctrine of separation of church and state, but is the simple posting of a picture? Unfortunately, for the supporters of Warner Sallman’s famous “Head of Christ” portrait, it probably is.

"In 1994 the 6th U.S. Circuit Court of Appeals ruled, in a case strikingly similar to the Bridgeport case, that a Jesus portrait that had hung outside the principal’s office at a Michigan school for 30 years was a violation. The court found in Washegesic v. Bloomindale Public Schools that the picture failed all three prongs of the so-called 'Lemon Test,' a 1971 U.S. Supreme Court decision that set up standards for deciding violations.

"The supporters of the Jesus picture may have community sentiment on their side, but it’s unlikely they would have the courts if they push the case.

"Ultimately, the controversy over the Jesus picture may be intellectually interesting as well as emotional, but it has little to do with education itself. Harrison County School Board President Sally Cann told me on Talkline Tuesday that she wishes the community was as interested in the school’s curriculum as they are the Jesus picture."

Mr. Kercheval is wrong on at least two points; (1) it would not be the supporters of the Jesus picture who would be "push[ing] the case," but the opponents who would initiate and "push" the case; and (2) the First Amendment was not adopted in order to banish Jesus portraits from public school and should not be twisted to serve as a basis for such banishment.

In AgapePress, Jim Brown reported on June 16, 2006 that (1) the Center for Law & Policy (CLP), the legal arm of the American Family Association, offered to defend the school board's decision not to remove the Jesus portrait; and (2) CLP senior itigation counsel Mike DePrimo disputes the ACLU's claimed violation of the so-called separation of church and state requirement and reliance upon a 1994 Sixth Circuit case ordering the removal of another Jesus portrait because the Ten Commandments cases decided by the Supreme Court in 2005 “appear to essentially overrule that 1994 case.”

The CLP position is that “[t] he mere display of a portrait of Jesus Christ is constitutional" and the facts are “bad” for the ACLU because the Jesus portrait had been “on display since 1963.”

That’s great news for Bridgeport High School, Mr. DePrimo pointed out, because “in the Ten Commandments case of Van Orden v. Perry, the Supreme Court indicated that the length of a display is a critical factor in analyzing its constitutionality.”

In Van Orden v. Perry, the high court ruled, 5 to 4, that a Ten Commandments display in the Texas State Capitol could remain because it served a historical purpose. Since then, one of the four—Justice Sandra Day O’Connor—was replaced by Justice Samuel A. Alito, Jr., who would be expected to have voted with the majority five.

So this time the ACLU should lose. That is a good thing. Otherwise, it might sue next to remove (or at least redact) displays of the United States Constitution in public schools. After all, that glorious historical document (like its predecessor, the Articles of Confederation) is dated “in the year of our Lord” and “our Lord” is an unmistakable reference to ... Jesus!

The ACLU's latest effort to keep students from seeing a Jesus portrait in a public school appears to be part of a vile, secular extremist, revisionist history campaign, an ACLU specialty.

Michael J. Gaynor

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.