Topic category:  Government/Politics

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."

Judge Barbara Crabb is claiming to know better. Without mentioning the great nineteenth century American legal commentator, she ruled the federal statute providing for a national day of prayer unconstitutional.

Some emailers who read my article titled "Latest Anti-Religion Judicial Outrage: Judge Crabb Rules National Prayer Day Unconstitutional" (April 17, 2010) (http://www.webcommentary.com/php/ShowArticle.php?id=gaynorm&date=100417) tried to defend Judge Crabb's liberal judicial activist/secular extremist decision by misstating the facts and ignoring and/or rewriting history.

One asked: "How is it 'anti-religion' to say, if you want to pray go ahead and do it, but you have no right to pass laws compelling others to follow your lead? Would you claim the right to tell me when and how I should pray? Isn't freedom what America is fundamentally about?"

Another asserted: "As a Christian myself, I wouldn't want my government to set aside Ramadan, or any Buddhism, or Confucius rituals as a day for them either. The Founding Fathers saw this as a danger, partly because so many denominations were already competing to name the U.S. as a '_____ Nation'. So, to the consternation of more than a few, the 'Wall of Separation' was inserted into the Constitution as part of the First Amendment (Only implied, but validated several times by THE Supreme Court)."

These persons are oblivious, at best.

The National Prayer Day statute (36 U.S.C. Section 119) states: "The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals."

That's not compelling ANYONE to pray!

As for the nutty notion that the First Amendment was drafted to stop the government from "set[ting] aside Ramadan, or any Buddhism, or Confucius rituals as a day for them either," Justice Joseph Story explained in his Commentaries on the Constitution: "The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age."

Nevertheless, support for religion generally was expected, not excoriated. "[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 plan was NOT to make secularism the national religion.

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."

As Justice Stanley Reed wrote 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 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."

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 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 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 quoted in my prior article set forth in detail, "an establishment of religion" requires much more.

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.