{"id":5466,"date":"2020-07-24T12:01:48","date_gmt":"2020-07-24T12:01:48","guid":{"rendered":"https:\/\/regnersmorningcoffee.com\/blogger\/?p=5466"},"modified":"2020-05-03T06:46:36","modified_gmt":"2020-05-03T06:46:36","slug":"another-coffee-break-our-forefathers-covenants-part-33","status":"publish","type":"post","link":"https:\/\/regnersmorningcoffee.com\/blogger\/another-coffee-break-our-forefathers-covenants-part-33\/","title":{"rendered":"ANOTHER COFFEE BREAK: OUR FOREFATHERS\u2019 COVENANTS, Part 33"},"content":{"rendered":"
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OUR FOREFATHERS\u2019\r\nCOVENANTS<\/o:p><\/span><\/b><\/p>\r\n\r\n

Part 33<\/o:p><\/span><\/b><\/p>\r\n\r\n

\u00a0<\/o:p><\/span><\/b><\/p>\r\n\r\n

July 24, 2020<\/o:p><\/span><\/b><\/p>\r\n\r\n

\u00a0<\/o:p><\/span><\/b><\/p>\r\n\r\n

Greetings and\r\nSalutations!\u00a0 Ready for the day?\u00a0 Good.\u00a0 Then pour yourself a\r\ncup of that good dark brew and let's pick up where we left off last week where\r\nwe were talking about the initial rulings in the Good News Club<\/i> case.<\/o:p><\/span><\/b><\/p>\r\n\r\n

At first,\r\nthe Federal Judge hearing the case granted a preliminary injunction which\r\nallowed the Club to hold weekly after-school meetings in school facilities for\r\na year, while awaiting trial.\u00a0 But trial never happened. Instead, in\r\nAugust 1998, the federal trial judge vacated the injunction and summarily ruled\r\nin favor the school district. The Club's subject matter was ruled \"decidedly religious in nature, and not merely a\r\ndiscussion of secular matters from a religious perspective.\"<\/span><\/i><\/b>As\r\na result, the Club was kicked out of the building.<\/o:p><\/span><\/p>\r\n\r\n

On appeal,\r\ntwo judges of a three-judge panel of the United States Court of Appeals for the\r\nSecond Circuit agreed with the trial judge. The panel ruled that because the\r\nsubject matter of the Club was \"quintessentially religious\" and fell\r\n\"outside the bounds of pure moral and character development,\" the\r\nClub could not be allowed to hold meetings in the government building. In\r\nshort, there was just too much bible study and praise for the Second Circuit's\r\nliking.\u00a0 The dissenting judge, to no avail, reminded his brethren that the\r\nSupreme Court's earlier ruling in Lamb's Chapel v. Center Moriches Union\r\nFree School District<\/i><\/b>remained binding precedent, and thus demanded the\r\nappellate court rule for the Club. Judges, too, are bound by the law.<\/o:p><\/span><\/p>\r\n\r\n

The\r\ndissenting judge was absolutely correct. The issue of how courts should address\r\nreligious speech that takes place in a limited public forum had already been\r\nfirmly and finally settled not only by the 1993 decision in Lamb's Chapel<\/i><\/b>,\r\nbut also by the 1995 ruling in Rosenberger v. Rector and Visitors of\r\nUniv. of Virginia<\/i>.<\/b>\u00a0 Taken separately, or as a pair, the two\r\nrulings were \u2014 and are \u2014 crystal clear that that religious speech, even in a\r\nlimited public forum, is fully protected by the Free Speech Clause of the First\r\nAmendment.<\/o:p><\/span><\/p>\r\n\r\n

Nevertheless,\r\nnot only the Second Circuit panel's majority, but also other lower federal\r\njudges across the nation chose to flout these two high court rulings. The\r\nEighth and Tenth Circuits followed the high court's precedent. But the Second,\r\nFifth, and Ninth Circuits either ignored it or found creative ways to\r\ndistinguish it \u2014 twisting logic so as to authorize blatant discrimination\r\nagainst religious speech. That gave rise to the need for the Supreme Court to\r\nintervene, and lay down the law in Good News<\/i><\/b>.<\/o:p><\/span><\/p>\r\n\r\n

After\r\nreading the Good News Club<\/i><\/b>record, it is tempting to ask whether\r\nsome lower court judges were purposely resisting the Rehnquist Court's approach\r\n\u2014 just as, in the past generation, some Southern federal judges once purposely\r\ndelayed and circumvented the implementation of the high court's racial\r\ndesegregation mandate in Brown v. Board of Education<\/i>.<\/b><\/o:p><\/span><\/p>\r\n\r\n

In Good\r\nNews<\/i>,<\/b> the Supreme Court, in a 6-3 decision, reminded lower federal\r\ncourts that they were not, in fact, God.\u00a0 Clarence Thomas wrote a very\r\ndirect opinion for the majority of six justices, which not only resolved the\r\nCircuit split but also sent a clear message.<\/o:p><\/span><\/p>\r\n\r\n

Justice\r\nThomas focused his analysis on the discrete question of whether the school\r\ndistrict could engage in viewpoint discrimination, simply because the speech\r\nwas religious. He quickly applied the Court's 1993 Lamb's Chapel<\/i><\/b>\r\nprecedent, and rebuked the Second Circuit for not doing the same: \"We find it remarkable that the Court of Appeals\r\nmajority did not cite Lamb's Chapel, despite its obvious relevance to the\r\ncase\u2026.This oversight is particularly incredible because the majority's\r\nattention was directed to it at every turn.\"<\/span><\/i><\/o:p><\/span><\/b><\/span><\/p>\r\n\r\n

Thomas\r\ncould see no logical Free Speech Clause difference between the invocation of\r\nChristianity by the Club and\"the\r\ninvocation of teamwork, loyalty, or patriotism<\/span><\/i><\/b>\" <\/i>by\r\nother after school groups.\u00a0 Thus, he rejected the Second Circuit's\r\ndetermination that reliance on Christian principles uniquely \"taints\"<\/span><\/i><\/b>moral and character\r\ndiscussions.<\/o:p><\/span><\/p>\r\n\r\n

He also,\r\nand similarly, rejected the argument that the K-12 public school would be \"endorsing\r\nreligion\" <\/i>by subjecting its young children to coercive peer pressures:\r\n\"We decline to employ Establishment Clause\r\njurisprudence using a modified heckler's veto, in which a group's religious\r\nactivity can be proscribed on the basis of what the youngest members of the\r\naudience might misperceive.\"<\/span><\/i><\/b><\/o:p><\/span><\/p>\r\n\r\n

(Note: Let\r\nme express my appreciation to Victor Williams, a FindLaw guest columnist, for\r\nhis wording and phraseology in some of the immediately foregoing paragraphs.)<\/o:p><\/span><\/p>\r\n\r\n

Let me wrap\r\nup this Coffee Break, and this series with a quick look at a case which came\r\nbefore the Supreme Court in 1892.\u00a0 This case, titled Holy Trinity Church\r\nv. U.S<\/i><\/b>., actually began in 1887 when The Church of the Holy Trinity in\r\nNew York employed the services of an English pastor, E. W. Warren, who left\r\nEngland to take the pastorate.\u00a0 Federal immigration officials attempted to\r\nblock the hiring of the pastor based on a federal statute which prohibited\r\nimporting foreign laborers. The U.S. Supreme Court held that this statute could\r\nnot be applied to pastors because this is a Christian nation.<\/o:p><\/span><\/p>\r\n\r\n

In its\r\nruling, the Court stated (and this gets pretty long, but is definitely worth\r\nthe read<\/a>), \"But,\r\nbeyond all these matters, no purpose of action against religion can be imputed\r\nto any legislation, state or national, because this is a religious people<\/span><\/strong><\/u><\/span><\/i><\/b>.<\/span><\/i>(accent added) This\r\nis historically true. From the discovery of this continent to the present hour,\r\nthere is a single voice making this affirmation.\u00a0 The commission to\r\nChristopher Columbus, prior to his sail westward, is from \"Ferdinand and\r\nIsabella, by the grace of God, king and queen of Castile,\" etc., and\r\nrecites that \"it is hoped that by God's assistance some of the continents\r\nand islands in the [143 U.S. 457, 466] ocean will be discovered,\"\r\netc.\u00a0 The first colonial grant, that made to Sir Walter Raleigh in 1584,\r\nwas from \"Elizabeth, by the grace of God, of England, Fraunce and Ireland,\r\nqueene, defender of the faith,\" etc.; and the grant authorizing him to\r\nenact statutes of the government of the proposed colony provided that\r\n\"they be not against the true Christian faith nowe professed in the Church of England<\/span><\/strong><\/span><\/i><\/b>.\"<\/span>\u00a0\u00a0<\/i><\/o:p><\/span><\/p>\r\n\r\n

\"The first charter of Virginia<\/a>,\r\ngranted by King James I. in 1606, after reciting the application of certain\r\nparties for a charter, commenced the grant in these words: \"We, greatly\r\ncommending, and graciously accepting of, their Desires for the Furtherance of\r\nso noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine\r\nMajesty<\/span><\/strong>, in<\/a> propagating of Christian\r\nReligion to such People, as yet live\r\nin Darkness<\/span><\/strong>and miserable Ignorance of the true Knowledge and Worship of God<\/span><\/strong>,\r\nand may in time bring the Infidels and Savages, living in those parts, to human Civility<\/span><\/strong>, and\r\nto a settled and quiet\r\nGovernment<\/span><\/strong>; DO, by these our Letters-Patents, graciously accept\r\nof, and agree to, their humble and well-intended Desires.\"<\/span><\/i><\/b><\/o:p><\/span><\/b><\/p>\r\n\r\n

\"Language of similar import may be found in the subsequent\r\ncharters of that colony, from the same king, in 1609 and 1611; and the same is\r\ntrue of the various charters granted to the other colonies. In language more or\r\nless emphatic is the\r\nestablishment of the Christian religion<\/span><\/strong> declared to be one of\r\nthe purposes of the grant.\u00a0 The celebrated compact made by the pilgrims in\r\nthe Mayflower, 1620, recites: \"Having undertaken for the Glory of God, and\r\nAdvancement of the\r\nChristian Faith<\/span><\/strong><\/span><\/i><\/b>, and the Honour of our\r\nKing and Country, a Voyage to plant the first Colony in the northern Parts of\r\nVirginia; Do by these Presents, solemnly and mutually, in the Presence of God\r\nand one another, covenant<\/span><\/u><\/strong>\r\nand combine ourselves together into a civil Body Politick, for our better\r\nOrdering and Preservation, and Furtherance of the Ends aforesaid.\"<\/b><\/span><\/i><\/o:p><\/span><\/b><\/p>\r\n\r\n

\"The fundamental orders of Connecticut, under which a\r\nprovisional government was instituted in 1638-39, commence with this\r\ndeclaration: \"Forasmuch as it hath pleased the Allmighty God by the wise\r\ndisposition of his diuynepruidence [143 U.S. 457, 467] so to Order and dispose\r\nof things that we the Inhabitants and Residents of Windsor, Hartford, and\r\nWethersfield are now cohabiting and dwelling in and vppon the River of\r\nConectecotte and the Lands thereunto adioyneing; And well knowing where a people are\r\ngathered togather the word of God requires that to mayntayne the peace and\r\nvnion of such a people there should be an orderly and decent Gouerment\r\nestablished according to God<\/span><\/strong>, to order and dispose of the\r\naffayres of the people at all seasons as occation shall require; doe therefore\r\nassotiate and conioyne our selues to be as one Publike State or Comonwelth; and\r\ndoe, for our selues and our Successors and such as shall be adioyned to vs att\r\nany tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearue the\r\nliberty and purity of the gospell of our Lord Jesus wch<\/sup> we now pr<\/sup>fesse<\/span><\/strong>,\r\nas also the disciplyne of the Churches, wch<\/sup>according\r\nto the truth of the said gospell<\/span><\/strong>is now practised amongst\r\nvs.\"<\/span><\/i><\/b><\/o:p><\/span><\/b><\/p>\r\n\r\n

\"In the charter of privileges granted by William Penn to\r\nthe province of Pennsylvania, in 1701, it is recited: \"Because no People\r\ncan be truly happy, though under the greatest Enjoyment of Civil Liberties, if\r\nabridged of the Freedom\r\nof their Consciences<\/span><\/strong>, as to their Religious Profession and Worship<\/span><\/strong>; And\r\nAlmighty God being the only Lord of Conscience, Father of Lights and Spirits;\r\nand the Author as well as Object of all divine Knowledge, Faith, and <\/span><\/i><\/b>Worship<\/span><\/i><\/strong>, who only doth\r\nenlighten the Minds, and persuade and convince the Understandings of People, I\r\ndo hereby grant and declare,\"<\/span><\/i><\/b>etc.<\/span><\/i><\/o:p><\/span><\/p>\r\n\r\n

\"Coming nearer to the present time, the declaration of\r\nindependence recognizes the presence of the Divine in human affairs in these\r\nwords:\u00a0<\/span><\/i><\/b><\/o:p><\/span><\/b><\/p>\r\n\r\n