Michael Gaynor
August 9, 2006
ACLU (Anti-Cross Leftists United) strikes again!
By Michael Gaynor

The American Civil Liberties Union's sinister secular extremist presumption is getting even worse. Now the ACLU wants to stop a cross from being placed on private property, at private expense, in Louisiana, in honor of Hurricane Katrina victims. The significance of this overreach should be immense. If publicized, it should inspire most voters to support presidents and United States senators who will nominate and confirm strict constructionists instead of judicial activists to all federal courts (especially the United States Supreme Court). Justices like Chief Justice John Roberts and Associate Justice Samuel A. Alito, Jr., appointed by President Bush, NOT Justices like Ruth Bade Ginsburg and Stephen Breyer, appointed by former President Clinton.

Karen Turni Bazile reported this despicable development in The Times-Picayune, a New Orleans newspaper, fittingly, on a Sunday, August 6, 2006, in this article titled "Katrina memorial bears Jesus' face":

"Alarmed by newspaper reports that a hurricane memorial in St. Bernard Parish will feature a cross bearing a likeness of the face of Jesus, the American Civil Liberties Union of Louisiana is reminding parish officials of the Constitution's separation of church and state.

"Never one to back down, Parish President Henry 'Junior' Rodriguez has a simple reply: 'They can kiss my ass.'

"In a July 28 letter to Rodriguez and other officials, Louisiana ACLU Executive Director Joe Cook said that the government promotion of a patently religious symbol on a public waterway is a violation of the Constitution's First Amendment, which prohibits government from advancing a religion.

"Rodriguez did not say whether he has responded to Cook's letter, but in an interview, he said he sees nothing improper about the memorial, which will be mounted near the shoreline of the Mississippi River-Gulf Outlet at Shell Beach. The cross and accompanying monument listing the names of the 129 parish residents who died in Hurricane Katrina are earmarked for what the parish says is private land and are being financed with donations, Rodriguez said.

"Nonetheless, Cook asked the parish to erect a religiously neutral symbol and also voiced concern that the Parish Council was sanctioning a religious monument.

"Returning Rodriguez's volley, Cook added, 'It would be better if he would kiss the Constitution and honor it and honor the First Amendment.'

"The St. Bernard Parish Council voted several months ago to erect a monument, but at the time did not offer specific plans. The parish recently announced plans to dedicate the memorial on Aug. 29, the one-year anniversary of the devastating hurricane.

"The cross is being designed and fabricated by Vincent LaBruzzo, a welder and fabricator from Arabi. The stainless-steel cross will be 13 feet tall and 7 feet wide and will be lighted, according to a note on the parish's Web site, www.sbpg.net

"LaBruzzo worked for the parish before recently taking a job with Unified Recovery Group, the company clearing the parish's storm debris. Rodriguez said he helped LaBruzzo get the job with URG. LaBruzzo did not return phone messages seeking comment.

"Rodriguez and others like the idea of putting the monument along the banks of the MRGO, because that waterway, dug by the federal government as a shipping shortcut in the 1960s, is widely blamed in the parish for accelerating the deadly flooding that accompanied Katrina. Over the years erosion has widened the outlet, so the bank on which the cross will be erected is on privately owned land, Rodriguez said. He added that the parish is researching who owns the land on which the stone monument bearing the names of the victims will sit, but he thinks that it is also privately owned.

"Parish Councilman Tony 'Ricky' Melerine and Charlie Reppel, Rodriguez's chief of staff, said they are co-chairing the memorial committee on their private time.

"'The memorial is being coordinated by a group of volunteers on their own time, and no public money is going to the project that will be on private land,' Reppel said. 'The committee members are all volunteers, including me. We are putting in a lot of unpaid overtime.'

"Other committee members include St. Bernard Sheriff's Office Chief Deputy Anthony Fernandez Jr.; St. Bernard Tourism Director Elizabeth 'Gidget' McDougall; former Parish President Charles Ponstein, who is working with a state agency on local business retention; Lorrie Allen, Reppel's assistant; and LaBruzzo.

"As for the parish's statements that the memorial is being done outside government's auspices, Cook seems unconvinced.

"While the ACLU thinks a memorial to the storm and its victims is 'clearly appropriate,' Cook said, St. Bernard's is 'still all very questionable. I think there is official government involvement with the endorsement and advancement of this clearly religious symbol.'"

As usual, the ACLU is relying on a monumental misconstruction of the First Amendment's Establishment Clause to nullify the religion liberty guaranteed by the First Amendment's Free Exercise of Religion Clause. The United States Constitution does NOT require complete separation of church and state, or compel the United States government and state governments to be strictly neutral as between religion and "irreligion," or prevent the United States government and state governments from acknowledging God and supporting religion generally.

The contrary ACLU claim is a secular extremist myth that need to be exploded. It perverts the Establishment Clause to please the secular extremists, by ignoring history.

In the mid nineteenth century, secular extremists of that time challenged (unsuccessfully) the constitutionality of the military chaplaincy.

After careful study, 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."

Memorial crosses obviously do NOT constitute an establishment of religion as that term was used in the First Amendment. And the Free Exercise Clause authorizes the placement of a cross on private property, at private expense.

BUT, in 1947, in Everson v. Board of Education, the United States Supreme Court disregarded history and misconstrued the Constitution at the urging of a tiny secular extremist minority and the expense of the overwhelming religious majority in ruling that neither federal nor state governments "can pass laws which aid...all religions...."

In so ruling, the Court presumptuously substituted its personal view for the views of those who founded the United States, wrote and ratified the Articles of Confederation and the Constitution, and adopted the First Amendment and misused a much-quoted letter in which Thomas Jefferson had described the First Amendment as "building a wall of separation between church and state."

Justice Antonin Scalia, in a footnote to his compelling dissent in McCreary County v. American Civil Liberties Union of Kentucky (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 1113. 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)."

In misinterpreting the Establishment Clause, the United States Supreme Court misused a statement by 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 was misinterpreted as a prohibition against government acknowledging God and supporting religion generally instead of only a protection of churches from governmental interference. 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 Brethren 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 set forth in detail, "an establishment of religion" requires much more.

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.

The notion that a cross (with or without a depiction of Jesus) could not constitutionally be erected on private property at private expense would have struck Americans as absurd up until 1947, when the United States Supreme Court arbitrarily extended the First Amendment's establishment clause, by judicial invention, to separate church and state in a way that inhibits the free exercise of religion required by the First Amendment's Free Exercise Clause but provides freedom from religion to the unreligious minority. THAT surely was not contemplated by the men who drafted and ratified the Constitution and the First Amendment, and would not have been comprehensible to them.

America was not conceived of by those men as a theocracy or a secular state, but as "one nation, under God." The notion that under the Constitution the United States government cannot acknowledge God and instead must maintain a strict neutrality between religion and irreligion and crosses could not be erected on private property at private expense would have been considered absurd by virtually all the Founders, Framers, members of the First Congress and members of the state legislatures that ratified the First Amendment.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Michael 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... (more)


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