Topic category:  Other/General

Would the United States Supreme Court deny the families of military veterans the right to choose a military funeral with religious references?

America's Founders would be aghast: secular extremists targeted America's military long ago, unsuccessfully trying to use the Establishment Clause of the First Amendment to end the military chaplaincy, but now they have succeeded in having religious references at military funerals banned.

When secular extremists tried to expand the scope of the word "establishment" to encompass anything supporting religion generally to end the military chaplaincy during the nineteenth century, both houses of Congress studied the matter carefully and rejected the secular extremist position in the clearest possible terms.

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."

But sly secular extremists persevered and eventually prevailed upon the United States Supreme Court to declare, in Everson v. Board of Education (1947), neutrality between religion and irreligion as constitutionally mandated and governmental support for all religions to be constitutionally prohibited.

Judicial activism in action!

Genuflecting to secular extremism and political correctness extremism, the United States Department of Veterans Affairs opted to end the tradition of reciting the significance of each fold in the flag-folding ceremony at military funerals, because some recitations have religious significance!

Naturally, some Congressman on both sides of the aisle were outraged.

"The flag folding recitation is a longstanding tradition which brings comfort to the living and honor to the deceased," Rep. Heath Shuler, D-N.C., wrote in a letter joined in by 11 other congressmen. "The recitations accompanying each fold pay tribute to the service and sacrifice of our veterans and their families, the nation they proudly serve, and the beliefs that they hold dear."

The long-standing policy had allowed for a full military funeral, including the playing of taps, the folding of the flag in respectful silence and, upon family request, the honor guard reading special recitations, including some with religious symbolism.

After a complaint was filed to the White House after one of those recitations was misread, Steve L. Muro, the director of the National Cemetery Administration's field programs office, ordered cemetery directors to stop the readings.

Mr. Muro: "There are no federal laws related to the flag that assign any special meaning to the individual folds of the flag,l The National Cemetery Administration must not give meaning, or appear to give meaning to the folds of the flag by endorsing or distributing any handouts on 'The Meaning of Each Fold of an Honor Guard Funeral Flag.'"

Veterans were furious. Members of the American Legion began flooding national headquarters since the anti-religion decision.

"To me, it's a slap in the face for every veteran, every member of the Memorial Honor Detail and every family of the deceased veteran," said Rees Lloyd, a member of the American Legion's Memorial Honor Detail for services at Riverside National Cemetery in California.

What were secular extremists whining about?

As the honor guard makes the 13 folds — traditionally representing the original colonies — they recite "the first fold of our flag is a symbol of life, the second fold is a symbol of our belief in the eternal life, etc."

The recitation for the eleventh fold — "in the eyes of a Hebrew citizen, represents the lower portion of the seal of King David and King Solomon, and glorifies, in their eyes, the God of Abraham, Issac and Jacob" — was objected to, resulting in a ban on September 27, 2007, supposedly to create uniform services throughout the military graveyard system, National Cemetery Association spokesman Mike Nacincik said.

Mr. Nacinck also said that the 13-fold recital is not part of the U.S. Flag Code and is not government-approved, the flag-folding narrative includes references to God that the government does not endorse, and that the main reason for the new rules is uniformity.

Is THAT governmental neutrality between religion and irreligion?

Or have the irreligious chosen for everyone?

It's anti-religion uniformity.

"We definitely think it is a matter left up to the families," Ramona Joyce, an American Legion spokeswoman said. "It's a nice ceremony; we've been doing it for years. Our honor guards have been doing it," she said.

"It's respectful and it's something the family should be able to choose to have done if they so wish for their veteran," Joyce continued.

Mr. Lloyd thinks it's a matter of political correctness gone wild. "The entirety of this issue is an absurdity that shows political correctness and secular cleansing run amok. This is about families of deceased veterans putting to rest their loved ones. No one should interfere with their choices."

Mr. Lloyd is right.

The United States Supreme Court was wrong to expand the Establishment Clause beyond its intended scope.

The twelfth fold recitation is geared to Christians, saying the fold "represents an emblem of eternity and glorifies, in their eyes, God the Father, the Son and Holy Ghost."

Nothing wrong with that either. That's a statement of fact and the Constitution is dated "in the Year of our Lord."

America has no national religion,but it's not supposed to be hostile to religion.

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."

Reciting the twelfth fold recitation does not make Judaism the national religion, and reciting the thirteenth doesn't make Christianity the national religion.

Interfering with the military funeral ceremony was wrong.

What also was wrong was the United States Supreme Court disregarding history and expanding the Establishment Clause to please secular extremists and treating governmental support of religion generally as unconstitutional.

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.