Tuesday, September 15, 2009

Separation: Examination of the Record

If Thomas Jefferson promoted a “separation of church and state” as it is currently propagated by educators, national news media, and contemporary courts; one should be able to verify this through an examination of America’s history. I have already produced historic evidence that the current position is ignorant of American history.

In 1798 Thomas Jefferson wrote at the occasion of the Kentucky Resolution:
“No power over the freedom of religion… [is] delegated to the United States Constitution.”

The Congress of the United States passed into law the Northwest Ordinance on August 4, 1789. It has previously been passed into law under the Articles of Confederation. The United States Annotated Code, establishing the requirements for territories who desired to become states, lists the Northwest Ordinance among the most significant governmental instruments. President George Washington signed the Ordinance into law on August 7, 1789 during the same period the First Amendment was being formulated.
Article III "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

On April 30, 1802, Thomas Jefferson signed the enabling act for Ohio to beome a state. The act which Jefferson signed declared that government in this new state “not be repugnant to the [Northwest] Ordinance.”

President Jefferson recommended that the Congress of the United States pass a treaty with the Kaskaskia Indians on December 3, 1803. The annual support of a Catholic missionary priest of $100 was included in the treaty which would be supplied through the Federal treasury. In 1806 and 1807 two similar treaties were made with the Wyandotte and Cherokee tribes. A 1787 act of Congress was extended three times by Jefferson in which special lands were designated:
“For the sole use of Christian Indians and Moravian Brethren missionaries for civilizing the Indians and promoting Christianity.”

Jefferson wrote the following letter to Abigail Adams:
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them…But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”

Jefferson signed bills appropriating financial support of chaplains in Congress and the armed services. He signed the Articles of War, April 10th 1806 which includes the following statement:
“Earnestly recommended to all officers and soldiers, diligently attend divine services.”

It is most fascinating to discover that Jefferson actually anticipated with fear the current unorthodox trends in our courts that are not pursuant to the course the framers of our Constitution established.

September 6, 1819, Jefferson wrote:
“The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Jefferson wrote to William Jarvis on September 6, 1820:
“You seem…to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so…and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”

In 1821, Jefferson wrote to Mr. Hammond:
“The germ of dissolution of our federal government is in…the federal judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States.”

In 1983, Judge Brevard Hand quoted United States Supreme Court Justice Joseph Story who clarified the original meaning of the First Amendment.
“The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects (denominations) and to prevent any national ecclesiastical patronage of the national government”

Jaffree v. Board of School Commissioners of Mobile Country, 544 F. Supp. 1104 (S.D. Ala. 1983)

Warren E. Burger (1907- ) Chief Justice of the United States Supreme Court delivered the court’s opinion concerning chaplains opening Legislative sessions with prayer.
“The men who wrote the First Amendment religion clause did not view paid legislative chaplains and opening prayers as a violation of that amendment…the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”

“It can hardly be thought that in the same week the members of the first Congress voted to appoint and pay a chaplain for each House and also voted to approve the draft of the First Amendment... (that) they intended to forbid what they had just declared acceptable."

“(Chaplains and prayer) are deeply embedded in the history and tradition of this country.”

In 1985 case of Lynch v. Donnelly 465 U.S. 668, 669-670 (1985), Chief Justice Warren Burger upheld the city of Pawtucket, R. I. who did not violate the Constitution by displaying a Nativity scene. He emphatically declared that Presidential orders and proclamations from Congress have designated Christmas as a national holiday in religious terms since 1789.
“The city of Pawtucket, R.I., annually erects a Christmas display in a park…The crèche (nativity) display is sponsored by the city to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday; these are legitimate secular purposes…The crèche…is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas….”

“It would be ironic if…the crèche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Congress, and the courts for 2 centuries, would so ‘taint’ the exhibition as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol…would be an overreaction contrary to this Nation’s history.”

“There is an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life….The Constitution does not require a complete separation of church and state. It affirmatively mandates accommodation, not merely tolerance, of all religions and forbids hostility towards any.”

In 1985,William Hubbs Rehnquist (1924- ), as Associate Justice of the United States Supreme Court, stated the case Wallace v. Jafree, 472 U.S. 38,99:
“It is impossible to build sound constitutional doctrine upon a mistaken understanding of Constitutional history…The establishment clause had been expressly freighted with Jefferson’s misleading metaphor for nearly forty years.”
“There is simply no historical foundation for the proposition that the framers intended to build a wall of separation (between church and state)…The recent court decisions are in no way based on either the language or intent of the framers.”

Justice Joseph Story declared in his commentary on the First Amendment’s original meaning:
“The real object of the First Amendment was not to countenance much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects (denominations) and to prevent any national ecclesiastical patronage of the national government.”

Congress of the United States, March 27, 1854, report of Mr. Meacham of the House Committee on the Judiciary.
“What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rites 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 non-conformist. There never was as established religion without all these…”

“At the adoption of the Constitution…every State…provided as regularly for the support of the Church as for the support of the Government…”

“Down to the Revolution, every colony did sustain religion in some form. It was deemed peculiarly proper that the religion of liberty should be upheld by a free people.

"Had the people, during the Revolution, had a suspicion of any attempt to war against Christianity, that Revolution would have been strangled in its cradle.
At the time of the adoption of the Constitution and the amendments, the universal sentiment was that Christianity should be encouraged, not any one sect (denomination). Any attempt to level and discard all religion would have been viewed with universal indignation. The object was not to substitute Judaism or Mohammedanism, or infidelity, but to prevent rivalry among the (Christian) sects to the exclusion of others."

"If (Christianity) must be considered as the foundation on which the whole structure rests. Laws will not have permanence or power without the sanction of religious sentiment, - without a firm belief that there is a Power above us that will reward our virtues and punish our vices."

"In this age there can be no substitute for Christianity: that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions. That was the religion of the founders of the republic, and they expected it to remain the religion of their descendants. There is a great and very prevalent error on this subject in the opinion that those who organized this Government did not legislate on religion."

Congress of the United States of America, January 19, 1853. The following selections are from a report by Mr. Badger which was part of a Congressional investigation of the Senate Judiciary Committee.
“The (First Amendment) clause speaks of ‘an establishment of religion.’ What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country …endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who reject its doctrines or belong to other communions, - such law would be a ‘law respecting an establishment of religion…”

“They intended, by this amendment, to prohibit “an establishment of religion” such as the English Church presented, or anything like it. But they had no fear or jealously 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 been conducted.”

“In the law, Sunday is a ‘dies non;’ …The executive departments, the public establishments, are all closed on Sundays; on that day neither House of Congress sits…”

“Sunday, the Christian Sabbath, recognized and respected by all the departments of the Government…”

“Here is a recognition by law, and by universal usage, not only of a Sabbath, but of the Christian Sabbath, in exclusion of the Jewish Sabbath or Mohammedan Sabbath…the recognition of the Christian Sabbath (by the Constitution) is complete and perfect.”

“We are a Christian people…not because the law demands it, not to gain exclusive benefits or to avoid legal disabilities, but from choice and education; and in a land thus universally Christian, what is to be expected, what desired, but that we shall pay due regard to Christianity.”

William Orville Douglas (1898-1980), Justice of the United States Supreme Court. In the 1952 case of Zorach v. Caluson, 343 US 306 307 313, Justice Douglas declared:
“The First Amendment, however, does not say that in every respect there shall be a separation of Church and State, Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other.”

“That is the common sense of the manner. Otherwise the state and religion would be aliens to each other – hostile, suspicious, and even unfriendly…”
“Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution.”

“Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamation making Thanksgiving Day a holiday; “so help me God” in our courtroom oaths – these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies, would be flouting the First Amendment.”

“We are a religious people and our institutions presuppose a Supreme Being…No constitutional requirement makes it necessary for government to be hostile to religion and to throw its weight against the efforts to widen the scope of religious influence. The government must remain neutral when it comes to competition among sects…”

“A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court.’”
“We cannot read into the Bill of Rights such a philosophy of hostility to religion.”

Supreme Court of Maryland, 1799, in the case Runkel v. Winermiller ruled:
“Religion is of general and public concern, and on its support depend, in great measure, the peace and good order of government, the safety and happiness of the people. By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed upon the same equal footing, and are equal entitled to protection in their religious liberty.”

The Supreme Court of the State of Massachusetts, 1838 Commonwealth v. Abner Kneeland, 37 Mass. (20 Pick) 206,216-217 1838. The case involved a Universalist who claimed the right of “freedom of the press” as his defense for publishing libelous and defamatory remarks about Christianity and God. The Supreme Court delivered its decision, declaring that ‘freedom of press’ was not a license to print without restraint.
“According to the argument…every act, however injurious or criminal, which can be committed by the use of language may be committed…if such language is printed. Not only therefore would the article in question become a general license for scandal, calumny and falsehood against individuals, institutions and governments, in the form of publication…but all incitation to treason, assassination, and all other crimes however atrocious, if conveyed in printed language would be depunishable.”

“(The First Amendment) embraces all who believe in the existence of God, as well…as Christians of every denomination…This provision does not extend to atheists, because they do not believe in God or religion; and therefore…their sentiments and professions, whatever they may be, cannot be called religious sentiments and professions.”

United States Supreme Court, June 7, 1993, case of Jones v. Clear Creek Independent School District, 977 F.2d 963,972 (5th Cir.1992) The Supreme Court upheld the Fifth Circuit Court of Appeals decision permitting student-initiated prayer at high school graduation ceremonies, providing a majority of the class votes to do so.
“A majority of students can do what the State acting on its own cannot do to incorporate prayer in public high school graduation ceremonies.”

“There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free speech and Free Exercise Clauses protect.”

United States Court of Appeals – 6th Circuit 1992, in the case Americans United for the Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1555, stated:
“What the members of Chabad House seeks in this court is fully consistent with, and does not violate, our traditional division between church and state…They merely asked that they not be spurned because they choose to praise God. Instead of forcing them to remain on our sidelines, our Constitution offers them platform from which to proclaim their message. In a traditional public forum, as at the ballot box, all citizens are insiders as they seek to influence our civil life.”

United States Court of Appeals – 7th Circuit, May 17, 1993; The court rendered its opinion in the case of Walsh v. Boy Scouts of America. In 1989, Elliott Walsh of Hinsdale (an agnostic) sued the Boy Scouts on behalf of his son, Mark. He claimed religious discrimination against the West Suburban Council Tiger Cub Scout chapter. The U.S. Court of Appeals ruled that the Boy Scouts could keep the phrase, ‘duty to God’ in their oath. A private organization had the right to exclude anyone who refused to take the oath. In a 2-1 majority opinion, Judge John Coffey declared that the Boy Scouts did not violate the 1964 Civil Rights Act. Scouting was an activity and not a facility. The Boy Scouts of America was a membership organization and not a ‘place of public accommodation’.

“The leadership of many in our government is a testimonial to the success of Boy Scout activities…In recent years, single parent families, gang activity, the availability of drugs and other factors have increased the dire need for support structures like the Scouts.”

“When the government, in this instance, through the courts, seeks to regulate the membership of an organization like the Boy Scouts in a way that scuttles its founding principles, we run the risk of undermining one of the seedbeds of virtue that cultivate the sorts of citizens our nation so desperately needs.”

United States Court of Appeals – 7th Circuit 1992, in the case of Doe v. Small, 964 F.2d 611, 618 (7th Cir. 1992), stated:
“The Supreme Court has refused to find the Establishment Clause to be a sufficiently compelling interest to exclude private religious speech even from a limited public forum created by the government.”

United States Court of Appeals – 8th Circuit 1980, in the case Florey v. Souix Falls School District, 619 F. 2d 1311, 1314 (8th Cir. 1980) The court declared that performance and study of religious songs, inclusive of Christmas carols, is constitutional, providing the purpose is:
“Advancement of the students’ knowledge of society’s cultural and religious heritage, as well as the provision of an opportunity for students to perform a full range of music, poetry, and drama that is likely to be of interest to the students and their audience.”

United States Court of Appeals – 9th Circuit 1993, in the case of Kreisner v. City of San Diego, 1 F.3d 775,785, declared:
“The committee (seeking to erect the display), like other citizens of diverse views, has a right to express its views publically in areas traditionally held open for all manner of speech.”

United States Supreme Court 1948, McCollum v. Board of Education, 333 U.S. 203, and Justice Felix Frankfurter rendered the opinion of the court.
“Traditionally, organized education in the Western world was Church education. It could hardly be otherwise when the education of children was primarily study of the Word and the ways of God. Even in the Protestant countries, where there was a less close identification of Church and State, the basis of education was largely the Bible, and its chief purpose inculcation of piety…”

United States Supreme Court 1963, in the case School District of Abington Township v. Schempp, 374 U.S. 203, 212, 225 (1963), pp.21, 71. Associate Justice Tom Clark wrote the courts opinion:

“It is true that religion has been closely identified with our history and government. As we said in ‘Engle v. Vitale’. ‘The history of man is inseparable from the history of religion’”

“Secularism is unconstitutional…preferring those who do not believe over those who do believe…It is the duty of government to deter no-belief religions…Facilities of government cannot offend religious principles…”

“[T]he State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe.

It might be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”

United States Supreme Court, 1969, in the case Tinker v. DesMoines Independent School District, 393 U.S. 503, 506, 512, 513 (1969) staed:

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. (Student’s rights apply) in the cafeteria, or on the playing field, or on campus during authorized hours…”

“School officials do not possess absolute authority over their students.”

United States Supreme Court 1973, in the case Anderson v. Lake City Corp, 475F. 2d 29, 33, 34 (10th Cir. 1973), cert. denied, 414 U.S. 879, stated:

“But this creed does not include any element of coercion concerning these beliefs unless one considers it coercive to look upon the Ten Commandments. Although they are in plain view, no one is required to read them or recite them."

“It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era.”

United States Supreme Court 1980, in the case Stone v. Graham, 449 U.S. 39, 42, 46 (1980), stated:
“Religion has been closely identified with our history and government, Abington School District, 1963, and that history of man is inseparable from the history of religion. Engle v. Vitale, 1962.”

United States Supreme Court 1981, in the case Widmar v. Vincent, 454 U.S. 263, 269 (1981), stated:
“Religious worship and discussion…are forms of speech and association protected by the First Amendment.”

United States Supreme Court 1982, in the case Chambers v. March, 675 F. 228, 233 (8th Cir. 1982); review allowed, 463 U.S. 783 (1982), Chief Justice Warren E. Burger delivered the court’s opinion:

“The legislature by majority vote invites a clergyman to give a prayer, neither the inviting nor the giving nor the hearing of the prayer is making a law. On this basis alone…the sayings of prayers, per se, in the legislative halls at the opening session is not prohibited by the First and Fourteenth Amendments.”

“The case Bogen v. Doty…involved a county board’s practice of opening each of its public meetings with a prayer offered by a local member of the clergy…This Court upheld that practice, finding that it advanced a clearly secular purpose of establishing a solemn atmosphere and serious tone for the board meetings…establishing solemnity is the primary effect of all invocations at gatherings of persons with differing views on religion.”

“The men who wrote the First Amendment religion clause did not view paid legislative chaplains and opening prayers as a violation of that amendment…the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”

“It can hardly be thought that in the same week the members of the first Congress voted to appoint and pay a chaplain for each House and also voted to approve the draft of the First Amendment…(that) they intended to forbid what they had just declared acceptable.”

“(Chaplains and prayer) are deeply embedded in the history and tradition of this country.”

President George Washington addressed the General Committee of the United Baptist Churches of Virginia on May 10, 1789:

“If I could have entertained the slightest apprehension that the Constitution framed by the Convention, where I had the honor to preside, might possibly endanger the religious rights of any ecclesiastical Society, certainly I would never have placed my signature to it;

“…I beg you will be persuaded that one would be more zealous than myself to establish effectual barriers against…every species of religious persecution.”

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