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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:  July 6, 2006
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Supremes, Reverse Secular Extremist Course; Protect Cross!

"The highest story of the American Revolution is this: it connected in one indissoluble bond the principles of civil government with the principles of Christianity." "The general principles, on which the Fathers achieved independence, were . . . the general principles of Christianity." So said (and thought) Founder and President John Adams.

"The highest story of the American Revolution is this: it connected in one indissoluble bond the principles of civil government with the principles of Christianity." "The general principles, on which the Fathers achieved independence, were . . . the general principles of Christianity." So said (and thought) Founder and President John Adams.

There must be absolute separation of church and state. The portrait of Jesus near the principal's office in a West Virginia public high school, the Mount Soledad Cross on public property in California and the Ten Commandments monument on the Texas capitol grounds must be removed immediately. Nondenominational prayer in a public school must be banned. "[U]nder God" must be dropped from "The Pledge of Allegiance" and "In God We Trust" from America's coin and currency. And, of course, Laus Deo (Latin for Praise God), which appears at the top of the Washington Monument, must be at least covered (even though Washington praised God). So say (or think) the secular extremists.

The Mount Soledad Cross case affords the current United States Supreme Court the opportunity to return to the religion-friendly constitutional path that the Court abandoned in 1947, in Everson v. Board of Education, by gratuitously declaring: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

Justice Antonin Scalia, in a footnote to his compelling dissent in McCreary County v. American Civil Liberties Union of Kentucky (June 27, 2005), the infamous Kentucky Ten Commandments case, not only lamented the insidious effect of Everson, but exposed and lambasted it as specious and the "evidence" on which it purportedly was based as "a bill of goods": "The fountainhead of this jurisprudence, Everson v. Board of Ed. of Ewing, based its dictum that '[n]either a state nor the Federal Government . . . can pass laws which . . . aid all religions,' 330 U.S., at 15, on a review of historical evidence that focused on the debate leading up to the passage of the Virginia Bill for Religious Liberty, see id., at 11–13. A prominent commentator of the time remarked (after a thorough review of the evidence himself) that it appeared the Court had been 'sold . . . a bill of goods.' Corwin, The Supreme Court as National School Board, 14 Law & Contemp. Prob. 3, 16 (1949)."

The first George W. would be shocked that an affronted atheist would find judicial support for his campaign to remove the Mount Soledad Cross from public property and surprised that more than a miniscule number of people would conceive of the presence of the Mount Soledad Cross on public property would be an unconstitutional establishment of religion.

Washington wanted a national cathedral! In 1791, Congress selected the site to be the capital of the United States. Washington, previously President of the Constitutional Convention and then President of the United States, commissioned Pierre 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 and for secular extremists to succeed in imposing a de facto constitutional amendment imposing neutrality between religion and irreligion on government and banning governmental support for religion generally under the guise of judicial interpretation more than 150 years after the First Amendment was adopted.

Alexander Hamilton, a signer of the Constitution, author of 51 of the 85 Federalist Papers making the case for ratifying the Constitution and Washington's Secretary of the Treasury, not only described the Constitution in 1787 as "a system which without the finger of God, never could have been suggested and agreed upon by such a diversity of interests," but also emphasized the relationship between Christianity and the Constitution and the need to respect the Constitution's prescribed amendment procedure:

The “separation of church and state” phrase, now so familiar and misunderstood, was used by Thomas Jefferson in an exchange of private letters with the Baptist Association of Danbury, Connecticut, shortly after he became President.

The people who rejected the notion of a divine right of kings and revolted against the rule of King George III in order to establish a nation based on these "self-evident" "truths": "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness--that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...."

Thomas Jefferson wrote those words as well as the "separation of church and state phrase." In understanding what he meant by the phrase, it is necessary to appreciate that when he wrote it in Great Britain (from which America had revolted) church and state were not separated (the King being both head of state and head of the state church) and America had ratified a Constitution and a Bill of Rights that rejected both theocracy and secular extremist and embraced secular moderation (no religious test for federal office, no national church and no federal interference with free exercise of religion).

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."

When Jefferson wrote to the Baptist Association, he gave assurance that they could worship in their church free from any interference from the national government. He envisioned a wall with a door through which churchgoers could pass to go to church, where they would be safe from governmental interference with their religious opinions (but not necessarily every act prompted by religious opinion), or from church to the public square, where they could freely exercise their religion as well as their freedoms of speech and press. He never said that religious people could not proceed to the public square and there acknowledge God and advocate public policy consistent with their religious beliefs. The people who wrote and ratified the Constitution and the First Amendment expected religious values to inform public policy and their federal government to acknowledge God with humble gratitude instead of to suddenly refrain out of even greater respect for atheist "sensibilities" and to treat America's religious-based national holidays (Thanksgiving and Christmas) as unconstitutional establishments of religion or pretend that thanks is not supposed to be given to God and Christmas is a purely secular holiday without any religious significance).

President Jefferson would not be affronted by the Mount Sodedad Cross being on public property. He had no intention of absolutely prohibiting any religious display on federal government property or of allowing the government to limit, restrict, regulate, or interfere with public religious practices. As President, he road to the Capitol (on horseback) to attend religious services at which the minister used the podium of the Speaker of the House of Representatives (and his successor, President James Madison did the same, except he road by carriage. The notion that the Mount Soledad Cross must be removed from public property because it constitutes an unconstitutional establishment of religion would not have seemed constitutional to them. They believed in freedom of religion, not freedom from religion. Jefferson noted in a letter to Noah Webster in 1790. freedom of religion is a "fence[] which experience has proved peculiarly efficacious against wrong...." Unfortunately, he switched from the fence to the wall metaphor when he wrote to the Baptist Association and 146 years later, the United States Supreme Court swallowed the secular extremism spin whole.

Like America's other Founders, Jefferson would be distressed that the First Amendment's establishment clause has been monstrously enlarged at the expense of its free exercise clause. In a letter to fellow Founder Benjamin Rush written on September 23, 1800 (before his correspondence with the Baptist Association), Jefferson indicated that America was a Christian nation but no "particular form of Christianity" was to be established: "[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly." Jefferson, Writings, Vol. III, p. 441.

Jefferson doubted the divinity of Jesus, but did not doubt the existence of God and he considered himself a Christian. He believed that God, not government, was the source of rights and government must not interference with those rights. He did not opine that agnosticism should be America's national religion, or that government could not acknowledge God and support religion generally.

The “fence” of Jefferson's Webster letter and the “wall” of his Baptist Association letter were not supposed to limit religious activities in public, but to limit the power of the government to prohibit or interfere with those expressions of religion.

The notion that in America a religious person is must leave his or her religious values behind when he or she enters the public arena is an unAmerican one.

America was founded as a Christian nation, although that is anathema to secular extremists and they try mightily to rewrite history.

Virginia's Patrick Henry ("Give me liberty or give me death") put it this way: "It cannot be emphasized too strongly or too often that this great nation was Christians...on the Gospel of Jesus Christ."

John Jay, a Federalist Papers author and America's first Chief Justice, described America as a Christian nation: "Providence has given to our people the choice of their rulers. And it is the duty as well as the privilege and interest, of a Christian nation to select and prefer Christians for their rulers."

President John Quincy Adams: "The general principles on which the fathers achieved independence were.... the general principles of Christianity."

Noah Webster: "The religion which has introduced civil liberty is the religion of Christ and His Apostles.... This is genuine Christianity and to this we owe our free constitutions of government."

President Andrew Jackson: "The Bible is the Rock on which this Republic rests."

America's greatest chief justice, John Marshall, proclaimed in 1833 (more than forty years after the First Amendment was adopted): "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 whose jurisprudence reflected Christian belief and their government should recognize it.


On July 4, 1837, the 61st anniversary of the Declaration of Independence, President John Quincey Adams, showed that he too expected religious values to inform public policy and religious expression to be welcome in the public square:

Thomas Cooley, America's leading legal commentator during the second half of the nineteenth century, 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."

In Holy Trinity Church v. United States, 143 U.S. 457 (1892), the United States Supreme Court described America as "a Christian nation": "If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation."

The decision did not draw a single dissent, and the so-called tension between the two religious clauses of the First Amendment was dismissed as contrived.

The First Amendment was intended to protect the private right of conscience, but not to be used as a sword instead of a shield.

"The attempt by the rulers of a nation to destroy all religious opinion and to pervert a whole people to atheism is a phenomenon of profligacy. To establish atheism on the ruins of Christianity is to deprive mankind of its best consolations and most animating hopes and to make a gloomy desert of the universe." (emphasis added). So said Hamilton.

Unfortunately, secular extremism remains a plague. Fortunately, the United States Supreme Court is bound to support the Constitution, not its prior bad decisions. Hopefully, it will do so and thereby make excellent use of the Mount Soledad case to reverse its egregious Everson error.

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.

Gaynor's email address is

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